The executive privilege debate

The recent dispute over President Bush's exercise of executive privilege (he prevented several current and former aides from testifying to Congress) have raised fascinating and important questions - great fodder for class discussion in courses on American government and the separation of powers. In the classic Watergate case of US v. Nixon, the Supreme Court rejected Nixon's privilege claims, but on rather narrow grounds - the special prosecutor's request for Nixon's famous tapes was related to a criminal investigation that could lead to criminal charges and the use of the tapes in a trial, the request was narrow, and there was no specific claim that release of the tapes did affect national security interests. Here, we are dealing with congressional oversight, not with a criminal investigation, and the privilege claim is used to prevent testimony of former presidential aides, not the delivery of documents. In addition, President Bush has ordered the Justice Department not to prosecute contempt of Congress charges resulting from the refusal of his aides to testify. Students can have a field day comparing the refusals to testify with the Nixon case and other executive privilege claims, such as those made under Clinton or earlier during the Bush administration, that never made it to the Supreme Court.

Besides the substantive questions involved, executive privilege is a fascinating issue because the Supreme Court (and the courts in general) plays such a small role in it. President Bush's attempt to prevent contempt of Congress prosecutions is a spectacular way to keep the courts out, and it is a rather unusual strategy. But it is part of the bargaining process between Congress and the president over what information the president will actually provide to Congress, and that's the common way executive privilege disputes have been solved in the past. As to the courts, most of the action takes place in the lower federal courts, not the Supreme Court.

There are a number of useful online resources on the executive privilege and the current dispute between Congress and the Bush administration:

For background information on executive privilege, there is an excellent Congressional Research Service publication on "Presidential claims of congressional privilege" (pdf) (you may also want to look at the CRS paper on congressional contempt power (pdf); both via Secrecy News). Vikram David Amar gives a shorter rundown of the history of the argument in the context of the conflict over Concoleezza Rice's 2004 testimony before the 9/11 Commission (on Findlaw's Writ). David Kaiser, of the Naval War College, gives another brief and readable overview in the context of the current debate, but he relies strongly on Raoul Berger's work on executive privilege, which essentially argues that the privilege has no constitutional basis (it's out of print, but you should find it in most university libraries). For book-length treatments of the executive privilege in addition (and contrast) to Berger, you may want to check out Lou Fisher's 2003 The Politics of Executive Privilege and Mark Rozell's Executive Privilege.

There have been lots of opinion pieces on the executive privilege story in newspapers and blogs. If you want to read only one piece, go to the Federalist Society website, which in July hosted an online debate between a number of prominent lawyers and law professors on the executive privilege claims. (Which, by the way, is an excellent example of how rational debate across the ideological and partisan aisles is still possible - organized by a group frequently vilified by liberals.)

My new APSA paper is online

I'll be off to this year's American Political Science Association conference later this week. I'll present a formal model of dissents in U.S. Courts of Appeals panels; the paper can be found here. Any comments welcome!

Now I just hope Chicago will be inhabitable next weekend...

Suggestion for POSC 295 students: Take a look at the APSA program and browse some of the papers posted here. While some of the material may be (but only maybe) over your head, you'll find lots of ideas for interesting research topics.

Wiretapping, prosecutors, executive privilege

The ongoing debates about the firing of federal prosecutors, executive privilege, and wiretapping make great teaching material. They involve hot-button issues that have partisans excited, and students should be more interested than usual. That excitement is justified, considering the issues at stake. The debates concern important questions of political ground rules that can only be called constitutional (although the debates are not always framed in terms of the Constitution). Still, the courts do not play a dominant role, contradicting the impression students may get in Conlaw classes discussing only Supreme Court cases. All of these issues illustrate clearly the weakness of judicial institutions and the importance of actual power structures and interest constellations. For example, the executive privilege and prosecutor questions illustrate how important the administration's gatekeeping powers are for the courts -- and to what extent this reduces the influence of what we often like to think of as an neutral application of the law.

In the next couple of weeks, I'll post here a number of links to the debates surrounding these three issues. There is lots of fascinating and knowledgeable material available on blogs and websites that is great for class discussion. Also, it's nice to see that despite the current noisy partisanship it is still possible to conduct profound public political discussions across the aisle.

Notetaking applications

Via Lifehacker, here is a list of online programs that can be useful for note taking. I haven't tried most of them, but none seems to permit hyperlinking notes, something I find really important as I take notes that I use in different contexts. Currently, I am pretty happy with WikidPad, a "personal" (meaning single-user) wiki that allows me to jot down notes very quickly and to cross-link with keywords etc. For example, in one of my recent working papers, I summarize the literatures on constructivism (in international relations) and historical institutionalism. For that purpose, I created notes on constructivism and hist. institutionalism that linked to my notes on all the papers and books that contribute to those literatures, making it easy to keep track of all the sources I use. (And, vice versa, when I go back to any one of those sources in a year or so, I have a link to the general theoretical summaries I created for this paper.)

I think that cross-linking is important for students, who tend to overlook that different classes often deal with similar issues. Learning how to cross-link may help students see that classes in, let's say, lit crit and political theory deal with similar questions and that material learned for one class may be useful for another.

(OK, WikidPad is not an online tool. But it doesn't take much space, so I have it on my flashdrive and run it from there. Almost like online, except that I can lose it...)

Comey et al., Gonzalez et al., and the attitudinal model

I don't want to join the public debate over the Comey testimony on Tuesday. The debate is very much alive on editorial pages and blogs, and I won't have anything useful to ad. If you haven't followed it (which I guess is unlikely), I recommend reading last week's posts on Balkinization and The Volokh Conspiracy, including the comments, as well as today's WashPost op-ed by Douglas Kmiec.

As I said, here I don't want to join the evaluative debate, but I want to point to the theoretical (and instructional) importance of Comey's (and other's) objection to the NSA surveillance program as it existed before March 2004. From the perspective of the attitudinal model, we should expect Comey, Ashcroft, Mueller, and other Justice Dept. officials to disagree with Bush, Cheney, Gonzalez, etc., over the surveillance program *if* Comey et al. are attitudinally more inclined to protect the individual privacy rights of Americans. But that's not a plausible assumption in this case: Ashcroft et al. were selected by the president; for all we know, they were reliably conservative allies of their political bosses; there is no reason to presume that they were more liberal than Bush, Cheney, Addington, Gonzalez, etc. Indeed, the fact that they were happy with the surveillance program under an alternative legal basis, indicates that their objection to the program was not based on attitudinal or ideological differences with the president, but on legal differences.

In other words, here we have an example of a case where we know - as well as we can ever know - the attitudes of the actors involved, and we find that some are willing to act against their attitudes and in accordance with their view of the law. The attitudinal model fails to explain this case, the legal model (or some version of it) provides an explanation. But how precisely does this explanation look like? One possibility is the one suggested by Brian Tamanaha in this Balkinization post: "The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." From this point of view, the pursuit of attitudinally motivated goals is constrained by the plausibility of legal arguments - and here we have a case where the legal arguments, at least in the view of Comey et al., were not plausible.

Another possibility is based on a strategic (or, if you prefer, legal-realism) argument: Comey et al. followed the law as they believed the courts would interpret it, and they did not believe that, should the program become public, the Supreme Court would support the Yoo/Cheney/Addington view of presidential power (you can find a good discussion of this view in the series of Yoo/Calabresi/et al. papers on the unitary executive; see for example here and here). Still, the law constrained Comey et al., but it did so not directly on the basis of the plausibility of its arguments, but on the basis of the composition of the Supreme Court: According to this argument, with a couple of Harriet Mierses on the Supreme Court, Ashcroft, Comey, and the others would have signed off on the program as it was. Segal and Spaeth (link) would probably be happier with this view, as their main argument is that the attitudinal model explains Supreme Court behavior, but not necessarily that of other actors. But we don't have an alternative universe with a bunch of Harriet Mierses on the Supreme Court, so we don't know if it was the (im)plausibility of legal arguments or the fear of prosecution was the decisive factor.

Hello back

...whoever may randomly visit. It's been a couple of busy months (or a busy couple of months? who knows...), and I still have to rethink how (and whether) to use this page for instructional and other *useful* purposes. But maybe I'll use it simply to shame myself into taking minimally coherent notes. Anyway, I promise that more is coming soon.

Free reference management software

I was finally cleaning up (er, starting to clean up...) the stacks of papers on my desk, read and half-read, and started to experiment with Zotero, a pretty promising free reference management system. In the past, I have used Endnote, which works perfectly, but since I work on two computers -- one at work, the other at home --, it's kind of a pain to coordinate the two reference files. The Zotero creators at GMU at least promise remote library syncing for the future. Let's see. So far, Zotero works if I type in references, but its import facility does not work with some of the research databases I use. Still, it's a free reference management system, and therefore should be of interest to some of my undergrad students who have already spent enough money on textbooks...

Now, fiddling with Zotero, I remembered that a couple of years ago I had experimented with a reference database system called CitULike, also free and completely online. The neat thing with this one is that it pools the references that users enter, somewhat like del.icio.us, which means that some references you would type in are already present. CiteULike lets you export references in Endnote and BibTeX format, which is fine for me, as I write most of my papers anyway in LaTeX. And for people who want to save some money, or students who expect to write only a handful research papers in their life, the combination of the two programs could make life easier.

UPDATE:
Just as I was writing this, a Zotero update came in. Tagging is easier now, it seems, a couple of database translators have been fixed, others have been added. Alas, importing references from EBSCO still doesn't work for me (and this means that I have to type in recent APSR articles). However, (I could have thought about it earlier,) CiteULike works perfectly with Zotero. I can input my references into CiteULike (if they're not already there), and when I need them I just suck them into Zotero (or save them as BibTeX). Not bad.