Archive for November, 2006

From Steel Mills to Military Commissions: Congressional Responsibility under Youngstown and Hamdan

Posted 2013 days ago by HLPRonline editorial staff

by Eric R. Haren

In Hamdan, the Court made clear that the Judiciary will not accept wartime assertions of exigency or emergency without evidence, and ensured that the courts will remain engaged in inter-branch debate on matters of national security. This was envisioned by the Framers and reiterated in Justice Jackson’s famous concurrence in Youngstown.

The Supreme Court’s decision last term in Hamdan v. Rumsfeld1 represents a powerful shift toward congressional responsibility, and away from executive prerogative, in America’s struggle against Al-Qaeda. Fifty-four years had passed since the Supreme Court of the United States last repudiated a significant executive measure taken to protect national security during ongoing hostilities. In that case, Youngstown Sheet and Tube v. Sawyer, the Court struck down President Truman’s seizure of the steel mills during the Korean Conflict.2 In his concurring opinion in Youngstown, Justice Robert Jackson devised a three-category analytical framework that became the controlling law in this area.3 While the majority in Hamdan did not rely on Jackson’s analysis4 in striking down the President’s military commission regime, its opinion adds substance to Jackson’s three-category framework in a manner that restricts executive authority and demands clearer action from Congress. Additionally, the Court in Hamdan firmly cemented the Judiciary’s role in answering wartime separation of powers questions. The net result requires Congress to legislate, rather than delegate, on wartime matters, and ensures the continued existence of a judicial check on governmental action. Hamdan strengthens the separation of powers doctrine that underlies our national government.

I. Justice Jackson’s Three-Category Framework

Our constitutional system was designed to foster inter-branch debate. However, after September 11th, 2001, that system came under strain, principally from ambitious assertions of sole executive power. The President sought, on his own exclusive authority, to conduct extensive electronic surveillance; to detain for years, without trial, American citizens on American soil; and to try alien enemy combatants by military tribunal, with the potential penalty of death. The merits of those policies aside, presidential arrogations of those powers, without clear authorization from Congress, constituted an extraordinary challenge to the separation of powers doctrine, the “essential precaution in favor of liberty.”5

Hamdan represents a judicial circumscription of those ambitious executive assertions in three critical ways, all derived from the legal test that long has governed wartime separation of powers law. That test comes from Justice Jackson’s concurring opinion in Youngstown, which articulated a three-category analytical framework for evaluating the legality of executive action.6 In the first category:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.7

In the second category:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.8

In the third category:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.9

This framework has served as an important mode of analysis for determining the legality of executive action in the national security arena.10 Jackson’s analysis turns on whether Congress, in the proper exercise of its own constitutional power, has expressly or impliedly approved or prohibited presidential action. The institutional focus on Congress is the proper mode of analysis, even on national security questions, for two reasons. First, although both elected branches possess power related to military force and foreign affairs, only Congress possesses Article I powers to declare war, to provide for the armed forces, to make rules and regulations for the land and naval forces, and to define and punish offenses against the law of nations. Second, only Congress possesses the sweeping grant of implied power contained within the Necessary and Proper Clause.11 That clause grants power to Congress to pass laws that are “Necessary and Proper” not only to the execution of congressional power, but also to powers vested in the other branches.12 And, because the President must faithfully execute the laws of the United States under Article II, he cannot contravene the word of Congress expressed in law unless the authority in question is exclusively assigned to the President.13 As a result, as Justice Kennedy recognized in his Hamdan concurrence, Jackson’s focus on congressional action is the proper way to assess the legality of executive action, even in wartime.14

Although the majority in Hamdan did not focus on Jackson’s three categories, the Court reaffirmed a key principle of Youngstown: that the President may not disregard congressional limitations on presidential action when Congress properly acts pursuant to its own power.15 The Hamdan majority made two relevant determinations in that regard. First, it held that neither Congress’s Authorization for the Use of Military Force16 (“AUMF”) after September 11th nor its passage of the Detainee Treatment Act of 200517 (“DTA”) constituted sufficiently clear authorization for the President’s military commission regime.18 Second, it held that the military commission regime violated the Uniform Code of Military Justice (“UCMJ”) by (1) contravening the statutory principle that commission procedures should be as uniform as practicable for court-martial proceedings and (2) by violating the Geneva Conventions’ Common Article 3 requirement (incorporated by reference into the UCMJ) of a “regularly constituted court.”19

Those holdings make clear that Congress must clearly authorize extraordinary exercises of war powers and that the President must follow every legislative restriction properly enacted by Congress. Thus, by any measure, Hamdan is a watershed separation-of-powers decision. However, much of Hamdan‘s language is specific to the tensions among the President’s military commission regime, the UCMJ, the Geneva Conventions, and the law of war. As a result, in future cases presenting different questions, courts likely will reach in the first instance for more abstract modes of analysis. As Justice Kennedy noted in his Hamdan concurrence, the “proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson.”20 As a consequence, it is a worthwhile exercise to ask how that framework interacts with the Hamdan decision.

II. Hamdan‘s Impact on Justice Jackson’s Categories

Although the Hamdan Court did not expressly base its analysis on Justice Jackson’s framework, the Court’s reasoning – basing the legality of the President’s actions on whether he contravened congressional enactments – is precisely the course of reasoning mandated by Jackson’s framework. From that perspective, the Hamdan decision adds substance to each of Jackson’s categories.

First, by imposing a clear-statement requirement on Congress, at least in areas as restrictive of liberty as military commissions, Hamdan limits the degree to which the Executive successfully can argue that an action is in the first category.21 The Hamdan Court considered both the AUMF and the DTA and could have determined that either statute constituted congressional authorization for the President’s military commission regime. Indeed, the AUMF had already been interpreted in an earlier case to have authorized detention of enemy combatants as a fundamental incident of waging war.22 In addition, the DTA was specifically passed to limit jurisdiction over habeas corpus petitions by Guantanamo detainees.23 Either statute could have served a congressional authorization for military commissions had the Court been inclined in that direction.24 However, the Court took a different course, requiring Congress to speak more clearly before authorizing a presidential regime that raised “separation-of-powers concerns of the highest order.”25 Such a clear-statement requirement should hinder future presidential efforts to draw expansive power from nebulous congressional enactments. Wartime presidents thus will be forced to involve Congress more often and more extensively, a result that reinforces a system that creates policy through “a deliberative and reflective process engaging both of the political branches.”26

Second, Hamdan makes clear that courts should not simply defer to presidential claims of military exigency, adding considerable substance to Justice Jackson’s second category.27 The question in this category is whether, in the absence of a congressional voice, the courts should take as preclusive the President’s word that a certain measure is imperative. In Hamdan, the President cited the “danger posed by international terrorism” as a justification for departing from standard court-martial procedures.28 Hamdan had been detained for several years without charge and was not charged by military commission until after he filed suit seeking his release. Without any substantial evidence that military exigency necessitated a departure from court-martial proceedings in Hamdan’s case, the Court refused to defer to the President’s assertion. That refusal adds substance to Jackson’s second category because it implies courts actually should inquire into the “imperatives of events” rather than granting total deference to executive assertions. Thus, post-Hamdan, when Congress is silent, at least the courts can serve as a counterweight to expansive assertions of executive power.

Third, Hamdan narrows the range of exclusive executive powers, which are the only presidential actions than can survive Jackson’s third category. With respect to this category, the President generally argues that his exclusive Article II powers are broad enough to withstand judicial scrutiny, even if Congress has prohibited a particular executive action. In support of that claim, the Executive often suggests that the courts should construe broadly the clauses vesting the “executive Power”29 and the “Commander in Chief”30 power in the President. That argument’s theoretical underpinnings rest on a historical understanding of the meaning of “executive Power” when the Constitution was ratified. On this view, “executive Power” meant those powers possessed by the British Crown. Thus, the argument goes, the President’s “executive Power[s]” under Article II must include every royal executive power except those expressly taken away and granted to Congress by Article I.31 In Hamdan, President Bush argued that Article II provided exclusive authority for instituting military commissions,32 meaning that the military commissions were legal even if Congress had clearly barred their use. Had a claim to sole executive power found favor with a majority of the Court, the President’s military commission regime necessarily would have been upheld.33 The Court said as much two years earlier in Hamdi v. Rumsfeld, when it wrote, concerning detention authority, “We do not reach the question whether Article II provides such [exclusive] authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF.”34 And yet, even though the Hamdan Court found that Congress had barred the Executives action, the majority again struck down the President’s actions without addressing the Executive’s claim to exclusive authority. Thus, by necessary implication, the Court clearly was unwilling to validate any claim to exclusive Article II authority,35 which, as noted above, is the only type that can survive analysis under category three of Jackson’s framework. Based on the Court’s clear unwillingness even to consider the Executive’s sole authority argument in Hamdan, the range of actions that can withstand category-three analysis is probably quite narrow. As a result of the foregoing, Hamdan fleshes out Justice Jackson’s three-category framework and helps explain much of the substantive law that will apply in future cases.

III. Hamdan‘s Impact on Future Judicial Review of Military Commission Determinations

For Hamdan‘s substantive impact to have significance, however, courts must be able to hear new cases and render decisions. In that regard, Hamdan is also significant because it makes clear that courts can continue to review military commission proceedings broadly, at least after the commissions make their determinations. First, the Hamdan majority engaged in a rather strained analysis to establish that the DTA did not deprive the Court of jurisdiction to hear cases pending on the date of the DTA’s enactment. That result suggests that the Court will accept nearly any plausible argument to sustain its own jurisdiction in cases where curtailing jurisdiction would raise serious constitutional questions.36

Second, in the military commission context, Hamdan establishes that recent congressional enactments provide for broad, substantive judicial review of commission determinations. Justices Scalia, Thomas, and Alito, seeking to stave off jurisdiction over Hamdan’s particular case, indicated that judicial review of military commission determinations would be quite searching. In particular, those justices argued that the DTA granted jurisdiction to the Court of Appeals for the D.C. Circuit to review every aspect of the military commissions for consistency with the Constitution and laws of the United States.37 The Military Commissions Act of 200638 (“MCA”), recently passed by Congress in reaction to Hamdan, authorizes judicial review in the D.C. Circuit and in the Supreme Court with language nearly identical to that in the DTA.39 The justices in the Hamdan majority certainly are unlikely to take a more restrictive view of that language than did the dissenters. Thus, extrapolating from the dissenting justices’ interpretations of the DTA in Hamdan, the judiciary can continue post-conviction review of every aspect of military commission proceedings to examine their consistency with the Constitution and laws of the United States. That result ensures judicial participation in the inter-branch debate that sustains our system of separated powers.

IV. Conclusion

Hamdan will encourage accountability both between branches and between our government and its people. It requires the Executive to seek authorization from Congress more frequently, increasing executive accountability both to the legislature and to the people. Additionally it requires that, when Congress acts, it must act with greater clarity and specificity, thus making legislators more accountable to their constituents. Hamdan also makes clear that the judiciary will not accept wartime assertions of exigency or emergency without evidence, and ensures that the courts will remain engaged in the inter-branch debate. Legislators and executive officials should, as a result, be expected to make more reasoned judgments and provide more substantial evidence for their decisions.

To be sure, we face a dangerous enemy who often hides, blends in with civilian populations, and wears no uniforms. Nevertheless, the drafters of our Constitution did not create an all-powerful Executive with the exclusive authority to deal with every national security problem. Madison thought our government’s structure of separated powers was the most effective safeguard of our liberties. In Hamdan, the Supreme Court vindicated that principle in two critical ways. First, the Court gave substance to all three of Justice Jackson’s analytical categories in a manner that restricts executive authority and demands clear congressional participation. Second, the decision makes clear that the judiciary remains committed to ensuring that governmental action remains within statutory and constitutional boundaries, both generally and specifically to the military commission context. Congress has responded to Hamdan by passing extensive legislation, which the President undoubtedly will enforce. The judiciary will then apply the reasoning developed in Hamdan as it works its way through individual cases. Such inter-branch tension was the vision of our founding generation. Because of the Hamdan decision, that vision is no longer in immediate jeopardy.

* Eric R. Haren is a Law Clerk to Chief Judge Danny J. Boggs, United States Court of Appeals for the Sixth Circuit.

1 126 S. Ct. 2749 (2006).

2 343 U.S. 579 (1952).

3 Id. at 634-643 (Jackson, J., concurring).

4 In his concurrence, Justice Kennedy did base his analysis on Jackson’s Youngstown categories. Hamdan, 126 S. Ct. at 2799-800 (Kennedy, J., concurring).

5 THE FEDERALIST NO. 47 (James Madison) (Clinton Rossiter ed., 1961).

6 Jackson, a former Attorney General under President Franklin Roosevelt, formerly was a strong advocate of executive power. See generally Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att’y Gen. 484 (1940) (arguing that the president had unilateral authority under the law to dispose of naval vessels in exchange for the acquisition of rights from the British government to establish military bases abroad). Nevertheless, the three-category test Jackson penned as a justice focuses on congressional authorization, rather than executive prerogative, in assessing the legality of executive action.

7 Youngstown, 343 U.S. at 636-37.

8 Id. at 637.

9 Id. at 637-38.

10 See Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); Hamdi v. Rumsfeld, 542 U.S. 507, 562-63 (2004) (Scalia and Stevens, JJ., concurring); id. at 583 (Thomas, J., dissenting). See also Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1274 (2002); Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 249, 253 (2003).

11 See generally McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

12 See U.S. CONST. art. I, § 8, cl. 18 (“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof“) (emphasis added).

13 Youngstown, 343 U.S. at 637-38 (“Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject.”).

14 126 S. Ct. at 2800 (Kennedy, J., concurring).

15 Justice Stevens, writing for a four-justice plurality in Part V of Hamdan, cited Justice Jackson’s Youngstown concurrence. Id. at 2774 n.23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Justice Kennedy, concurring with Justice Stevens’s majority opinion except as to Parts V and VI.d.iii, relied more heavily on Jackson’s Youngstown concurrence. Id. at 2800 (citing Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring)).

16 Pub. L. No. 107-40, 115 Stat. 224 (2001).

17 Pub. L. No. 109-148, §§ 1001-1006, 119 Stat. 2739, 2739-44 (to be codified at 42 U.S.C. 2000dd to 2000dd-1) [hereinafter DTA].

18 Hamdan, 126 S. Ct. at 2776.

19 See id. at 2789-98.

20 Id. at 2800 (Kennedy, J., concurring).

21 See supra text accompanying note 7.

22 See Hamdi, 542 U.S. at 518 (“We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”).

23 See DTA § 1005(e).

24 Cf. Hamdi at 519-20.

25 See Hamdan, 126 S. Ct. at 2800 (Kennedy, J., concurring) (citing Loving v. United States, 517 U.S. 748, 756-58, 760 (1996)).

26 Id. at 2799 (Kennedy, J., concurring).

27 See supra text accompanying note 8.

28 126 S. Ct. at 2792.

29 U.S. CONST. art. II, § 1, cl. 1.

30 Id. at art. II, § 2, cl. 1.

31 See, e.g., John C. Yoo, The Continuation of Politics By Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 197, 270 (1996) (“In adopting a new Constitution, the Framers consciously acted in the context of the British Constitution, under which they had lived as English colonists. . . . The Philadelphia Convention intended to modify, rather than transform, the political relationship between the executive and legislative branches in the realm of war powers . . . .”). See also Alexander Hamilton (Pacificus), Pacificus-Helvidius Debate, GAZETTE U.S., June 29, 1793 (“The general doctrine of our Constitution . . . is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”) (emphasis added), available at http://teachingamericanhistory.org/library/ index.asp?document=429.

32 See Brief for the Respondent at 21, Hamdan, 126 S. Ct. 2749 (No. 05-184) (“The President’s war power under Article II, Section 2, of the Constitution includes the inherent authority to create military commissions even in the absence of any statutory authorization, because that authority is a necessary and longstanding component of his war powers.”).

33 See Youngstown, 343 U.S. at 637-38 (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject.”).

34 542 U.S. at 517.

35 Indeed, only Justice Thomas’s dissent came close to addressing a claim of independent and exclusive presidential power to institute military commissions under Article II. See Hamdan, 126 S. Ct. at 2849 (Thomas, J., dissenting) (“The President’s findings about the nature of the present conflict with respect to members of al Qaeda operating in Afghanistan represents a core exercise of his commander-in-chief authority that this Court is bound to respect.”).

36 Cf. generally INS. v. St. Cyr, 533 U.S. 289, 305 (2001) (applying a clear-statement rule to avoid the conclusion that Congress had suspended the writ of habeas corpus).

37 Hamdan, 126 S. Ct. at 2818-19 (Scalia, J., joined by Thomas and Alito, JJ., dissenting) (The DTA “grants the D.C. Circuit authority to review, ‘to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States’. . . . [T]he ‘standards and procedures specified in’ Order No. 1 include every aspect of the military commissions, including the fact of their existence and every respect in which they differ from courts-martial. . . . The D.C. Circuit thus retains jurisdiction to consider these claims on post-decision review, and the Government does not dispute that the DTA leaves unaffected our certiorari jurisdiction under 28 U.S.C. § 1254(1) to review the D.C. Circuit’s decisions.”).

38 Pub. L. No. 109-366, 120 Stat 2600 (2006) (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter "MCA"].

39 Compare DTA § 1005(e)(2)(C) (“The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of . . . to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”) with MCA 3(a)(1) (refer specifically to amended § 950(g)(c)) (“The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.”).

Preferred Citation: Eric R. Haren, From Steel Mills to Military Commissions: Congressional Responsibility under Youngstown and Hamdan, 1 HARV. L. POL’Y REV. (Online) (Nov. 16, 2006), http://www.hlpronline.com/2006/07/haren_01.html.

Saying What the Law Is

Posted 2023 days ago by HLPRonline editorial staff

by Deborah N. Pearlstein

In the Military Commissions Act of 2006, Congress suggested that the Geneva Conventions are still good law while simultaneously denying the courts the authority to say what the Conventions mean. Congress and the President cannot have it both ways.

Passed in response to the Supreme Court’s landmark ruling in Hamdan v. Rumsfeld,1 the Military Commissions Act of 20062 (MCA) is by far the most sweeping legislation on the books bearing on the Executive’s power to detain, interrogate, and try suspected terrorists. Yet instead of grappling seriously with the issues that have plagued U.S. counterterrorism policy since September 11th, the bill is a creature of political circumstance, advanced in the wake of a devastating loss for the President in the Supreme Court on the eve of midterm elections that amount to a referendum on the political branches’ handling of national security. Given the stakes for the President and Congress, it is unsurprising that the Act’s most radical provisions take aim at the federal courts.

Indeed, sections of the Act purport to strip the courts not only of jurisdiction to decide core questions of executive authority, but also of the power to “say what the law is” in the cases properly before them. In this respect, Administration lawyers have their work cut out for them as they begin to draft briefs seeking to dismiss numerous habeas cases and civil actions where plaintiffs have challenged Administration detention and interrogation practices. For a statute that purports to protect the courts’ Article III judicial power but deny courts the authority to look at all the law before them challenges one of the fundamental tenets of Marbury v. Madison3 itself.

Consider for example Section 5 of the new law, which provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer . . . is a party as a source of rights in any court of the United States.” Cases involving treaties pose questions about the supreme law of the land, and thus clearly fall within the express judicial power of the U.S. federal courts to decide.4 It is therefore not at all clear what the Act means when it establishes that this particular set of treaties cannot be invoked as a “source of rights” in any U.S. court.

On one reading, Congress may mean that the Geneva Conventions will not afford litigants a private right of action – a route into federal court – for a particular kind of remedy, like damages. Indeed, some of the bill’s legislative history could be invoked to support this view.5 While the effectiveness of the statutory language in accomplishing this goal is open to debate, the notion that not all treaties come equipped with built-in “get into court” cards is quite familiar to American jurisprudence.6

But another reading, one that Administration lawyers advanced as a matter of treaty interpretation as Hamdan made its way through the courts before the MCA, would have this provision mean that the Geneva Conventions cannot be invoked as a rule of decision in federal courts. Put differently, Administration lawyers may hope Section 5 lends support to the idea that even in the course of a federal criminal prosecution or habeas action, the courts may not look to the Geneva Conventions in interpreting the scope of federal statutory law, imposing limits on the President’s Article II powers, or even declaring that certain U.S. government conduct is inconsistent with a treaty’s text.7 Indeed, when viewed alongside various other provisions of the MCA like § 6(a)(2), which purports to forbid courts from relying on foreign or international law in interpreting the federal War Crimes Act, or § 6(a)(3), which affords the President the “authority for the United States to interpret the meaning and application of the Geneva Conventions,” it seems plausible to imagine that the Administration would like to deny courts the power to look to whole bodies of law in the cases they decide.

Apart from the significant debate surrounding statutory interpretation that such a reading would provoke, interpreting Section 5 and analogous MCA provisions in this way would fly in the face of one of the core holdings of Hamdan itself: that whatever the enforcement mechanism, treaties are part of the law of the land binding on the U.S. government. And when a federal court exercising proper jurisdiction believes executive action violates a treaty obligation, the court has, at a minimum, the power to say so. For example, in rejecting the President’s arguments that the military commissions convened at Guantanamo Bay were properly authorized, the Hamdan Court looked in part to a federal statute expressly invoking the law of war as limiting the President’s authority to convene military commissions. “[R]egardless of the nature of the rights conferred on Hamdan,” the Court held, the Geneva Conventions are “part of the law of war. And compliance with the law of war is the condition upon which the authority set forth in [the statute authorizing military commissions] is granted.”8 Where Congress has specifically pointed to international law as defining the meaning of a statute (such as the War Crimes Act), the courts must look to that law in determining what the statute means.

Yet Hamdan appropriately goes further than this. Expressly overturning the Court of Appeals holding that “the Geneva Conventions are not judicially enforceable,” both the majority opinion (signed by five justices) and Justice Kennedy’s concurrence emphasized that, whatever the mechanisms for enforcing treaty requirements, as far as the federal government is concerned, “requirements they are nonetheless.”9 There is a critical – evidently constitutional – difference between the assertion that a treaty provides no private right of action and the assertion that a court cannot look to a ratified treaty as providing the rule of decision. The latter, Hamdan suggests, may be beyond Congress’ power to do.10

The rule could scarcely be otherwise. As scholars like Carlos Vazquez have pointed out, the whole idea of the Supremacy Clause was to make clear that treaties were fair game for the domestic courts.11 Treaties’ “true import, as far as respects individuals,” the great executive power expansivist Alexander Hamilton wrote in Federalist No. 22, “must, like all other laws, be ascertained by judicial determinations.”12 While this idea hardly resolves the question whether a particular treaty, standing alone, can get a party into court, it strongly supports the idea that once in the courthouse door, a party is entitled to at least a decision on what the law bearing on his case says.

The alternative rule would be strange indeed. Imagine that Congress enacts, for example, a criminal law establishing that those who provide abortions to minors must be sentenced to 30 years in jail. At the same time, Congress instructs the courts that the very same law cannot serve as the basis of a federal indictment. Such a set of laws would seem on their face contrary to the judiciary’s Article III powers to interpret the law, and the President’s duty to faithfully execute it. But more than this, they would allow Congress (and potentially the Executive) to effectively reap the political benefit of appearing tough on crime without bearing the political cost that might accompany the successful prosecution of a doctor. But when it comes to law enforcement, the Supreme Court has urged against interpretations that would produce just such a result. In requiring that the maximum sentence accompanying a given crime be provided by the legislature and proven to a jury – rather than affording judges the discretion to exceed the sentence provided by statutory law – the Court insisted that our democratic structures discourage legislatures from saying one thing while enabling the courts to do another. Rather, a state is required “to make its choices concerning the substantive content of its criminal laws with full awareness of the consequence, unable to mask substantive policy choices” behind having adopted the underlying law in the first place.13 In such a way, the Court noted, “[t]he political check on potentially harsh legislative action is then more likely to operate.”14

The Geneva Conventions are, to be sure, more to protect than to punish, but the principle of democratic accountability for the law on the books is the same. By insisting that the obligations of the Geneva Conventions remain binding on the United States while purporting to deny the Courts the power to say what the Conventions mean, the MCA would avoid precisely the political check the Apprendi Court had in mind. Centrally at issue in the MCA debates was whether the United States would abrogate or otherwise reject Common Article 3 of the Geneva Conventions – treaties ratified by every nation on earth – which provide a baseline standard for the humane treatment of detainees caught up in armed conflict. For many, the international political cost of being seen as running from the Geneva treaties while in the midst of a war in which international counterterrorism cooperation was essential was too great a risk.15 For others, particularly retired military leaders who advocated vigorously against a provision in the Administration’s original draft of the MCA that would have expressly redefined the scope of Common Article 3,16 any express U.S. effort to limit its Common Article 3 duties would badly undermine the chances that American troops would avoid mistreatment if they were captured by a foreign enemy.17 From the Administration’s perspective, legislation that would tell our allies we were adhering to the Geneva Conventions without permitting the courts to invoke those Conventions to limit U.S. government conduct would seem an ideal solution to the debate.

As long as the judiciary really has the power to “say what the law is,” however, Congress cannot simply ask the courts to ignore certain laws just because it is too afraid to bear the political consequences of taking them off the books. If Congress wanted to terminate U.S. participation in the Geneva Conventions (since Common Article 3 under the treaty is non-derogable), it enjoys that power. But it cannot pretend Geneva is still good law while denying the courts the authority to say what it means. It is for that reason, among many others, that any attempt to construe the MCA as forbidding the courts from considering what rights exist under the Geneva Conventions, should fail.

* Deborah Pearlstein is a Visiting Scholar at the Woodrow Wilson School of Public and International Affairs, Princeton University, and Director of the Law and Security Program at Human Rights First.

1 126 S. Ct. 2749 (2006).

2 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 [hereinafter "MCA"].

3 5 U.S. (1 Cranch) 137, 177 (1803).

4 U.S. CONST. art I, § 2; U.S. CONST. art. VI.

5 See, e.g., 152 CONG. REC. S10, 414 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) (“This legislation . . . would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions. The intent of this provision is to protect officers, employees, members of the Armed Forces, and other agents of the United States from suits for money damages or any other lawsuits that could harm the financial well-being of our personnel who were engaged in lawful–I emphasize ‘lawful’–activities.”).

6 See, e.g., Sanchez-Llamas v. Oregon, 126 S.Ct. 2699, 2677 (2006) (citing Head Money Cases, 112 U.S. 580, 598 (1884)).

7 Bush Administration lawyers have not historically been shy about arguing that “new” security challenges have made it essential to have a governmental structure where the Executive is free to act in security matters “without any interference from the federal judiciary.” See, e.g., John C. Yoo, War, Responsibility, and the Age of Terrorism, 57 STAN. L. REV. 793, at 794 (2004).

8 Hamdan, 126 S.Ct. 2749 at 2794 (2006) (citing 10 U.S.C. § 821) (noting President’s authority to convene military commissions extends only to those who may be tried by such commissions pursuant to statute or to the law of war).

9 Id. at 2798.

10 Id. See also id. at 2802 (Kennedy, J., concurring) (“The provision is part of a treaty the United States has ratified and thus accepted as binding law.”); cf. Sanchez-Llamas v. Oregon, 126 S.Ct. at 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) at 177 (1803) (“If treaties are to be given effect as federal law [under our legal system], determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.”); Williams v. Taylor, 529 U.S. 362, 378-79 (2000) (opinion of Stevens, J.) (“At the core of [the judicial] power is the federal courts’ independent responsibility–independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States–to interpret federal law.”).

11 CARLOS VAZQUEZ, HAMDAN AND THE GENEVA CONVENTIONS (Georgetown Law Faculty Blog) (June 30, 2006), http://gulcfac.typepad.com/georgetown_university_law/

2006/06/hamdan_and_the_.html.

12 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

13 Apprendi v. New Jersey, 530 U.S. 466, 490 n.16 (2000) (quoting Patterson v. New York, 432 U.S. 197, 228-29 n.13 (1977) (Powell, J., dissenting)).

14 Id.

15 Senator John Warner declared on the Senate floor: “What we do today will impact how we conduct the war on terror for as long as it lasts . . . It will fundamentally impact our relationships with our allies. It will fundamentally impact the image of the United States of America in the eyes of the world. It is crucial to our ability to keep America safe. It will speak most loudly about the core values, the principles of this great Republic known as the United States of America.” 152 CONG. REC. S10245 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from Families of 9/11 Victims to the Senate Opposing Administration Efforts to Undermine the Geneva Conventions (Sept. 14, 2006), available at

http://www.humanrightsfirst.info/pdf/06918-etn-911-fam-sigs.pdf; Richard Simon, Julian E. Barnes, & Janet Hook, Senate Panel Rebuffs Bush on Detainees, L.A. TIMES, Sept. 15, 2006, at A1.

16 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).

17 Senator John Warner said on the Senate floor, “Such an action [reinterpretation of the Geneva Conventions] could open the door to statutory reinterpretation by a host of other nations with less regard for human rights than the United States, and would result in possibly our U.S. troops being put at greater risk should they become captives in a future conflict.” 152 CONG. REC.. S10246 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from 40 Retired Military Leaders to Sen. John Warner and Sen. Carl Levin (Sept. 12, 2006), available at

http://www.humanrightsfirst.info/pdf/06913-etn-military-let-ca3.pdf; Letter from Gen. John Vessey to Sen. John McCain (Sept. 12, 2006), available at

http://www.humanrightsfirst.info/pdf/06914-etn-vessey-geneva-ltr.pdf; Letter from Gen. Colin Powell to Sen. John McCain (Sept. 13, 2006), available at

http://www.humanrightsfirst.info/pdf/06914-etn-powell-ltr-com-art-3.pdf; Letter From Gen. H. Hugh Shelton to Sen. John McCain (Sept. 20, 2006), available at

http://www.humanrightsfirst.info/pdf/06920-etn-shelton-ltr-mccain-ca3.pdf; Editorial, A Crucial Choice, WASH. POST, Sept. 14, 2006, at A20; Editorial, Listen to McCain and Powell, CHI. TRIB., Sept. 17, 2006, at C6; Editorial, Do Not Compromise on Torture, DES MOINES REG., Sept. 20, 2006, at 12A; Editorial, Stampeding Congress, N.Y. TIMES, Sept. 15, 2006, at A24.

Preferred Citation: Deborah N. Pearlstein, Saying What the Law Is, 1 HARV. L. POL’Y REV. (Online) (Nov 6, 2006),

http://www.hlpronline.com/2006/07/pearlstein_01.htm

A Pretense of Respect for the Geneva Conventions

Posted 2023 days ago by HLPRonline editorial staff

by JOSEPH M. McMILLAN

The supposed clarifications in the Military Commissions Act of 2006 are simply evasions of long-standing treaty obligations. In passing the MCA and signing it into law, Congress and the President have undercut our national commitment to protecting fundamental human rights.

In a speech at the White House in early September, President Bush confirmed the existence of a secret C.I.A. program for the detention and interrogation of “a small number of suspected terrorist leaders,”1 including those believed to be the architects of the September 11th attacks. The President said that, after one such suspect stopped cooperating, the C.I.A. used “an alternative set of procedures” to extract additional information from him. Mr. Bush declined to identify the procedures used, or where this interrogation occurred. He did say, however, that the recent United States Supreme Court ruling in Hamdan v. Rumsfeld2 “put in question the future of the C.I.A. program.”

The President was right to be concerned about the legality of the C.I.A. program and the “black sites” where such alternative procedures are employed. In Hamdan, over vigorous opposition from the Bush Administration, the Supreme Court held that Common Article 3 of the Third Geneva Convention Relative to the Treatment of Prisoners of War,3 which provides a minimum level of protection for anyone captured during an armed conflict regardless of whether that person is entitled to full protection as a prisoner of war, applies in the war on terror. At issue in Hamdan was the Common Article 3 requirement that if detainees are tried for alleged crimes, they must be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”4 The Supreme Court held that the President’s initial scheme for military commissions failed that test.

The President has now obtained legislative authorization for a new round of military commissions. The Military Commissions Act of 20065 (“MCA”) was rushed through Congress in late September just prior to Congress’ recess. President Bush signed the bill into law on October 17. Though the President and Congressional leaders pay lip service to the long-established standards of the Geneva Conventions, and to American due process values, the rules of evidence and the commission procedures established by the MCA nevertheless violate Common Article 3 and offend basic notions of fundamental fairness.

President Bush’s initial proposal would have permitted the military to exclude the accused from his own trial, and permitted convictions on the strength of evidence not disclosed to him.6 Such a scheme certainly would have denied detainees “the judicial guarantees recognized as indispensable by civilized peoples.”7 As Brigadier General James C. Walker, Staff Judge Advocate to the Commandant of the Marine Corps, explained to the House Armed Services Committee last month: “the Judge Advocates General [have] steadfastly maintained that a system which would permit the introduction of evidence against an accused, outside of his presence, is objectionable.”8 No civilized country would countenance such a procedure, and the Unites States should not be the first. Opposition on this point from powerful members of the Senate Armed Services Committee, including Republican Senators McCain, Graham, and Warner, forced the Bush Administration to eliminate these components of its proposal.

Unfortunately, the highly-touted compromise reached between the White House and those Republican Senators failed to address numerous grave problems with commission procedures. While the defendant’s right to be present at trial has been strengthened, the measure still permits the introduction of evidence long considered untrustworthy. For example, commission rules allow for the admission of evidence obtained through “coercion”9 despite the longstanding recognition in American jurisprudence that such testimony is inherently unreliable.10 In addition, the MCA reverses the traditional presumption against the admissibility of hearsay evidence, placing on the party opposed to the admission of such evidence the burden of proving its unreliability.11 Despite that reversal, the MCA does not provide the defendant with a fair chance to carry the burden, as the prosecution is permitted to keep sources and methods used to obtain evidence secret.12 These problems alone are sufficient to nullify the Common Article 3 guarantee of a fair process.

Even more fundamentally, the legislation Congress sent to the President undermines the prohibition against “violence to life and person,” “cruel treatment and torture,” and “outrages upon personal dignity, in particular, humiliating and degrading treatment” set forth in Common Article 3.13 The clear implication of the Hamdan ruling is that all of these provisions must be respected. If a detainee is to be punished under the laws of war (which include the Geneva Conventions), he must be afforded their procedural protections as well. Though the President has not disclosed the nature of the “alternative procedures” to which he referred in his speech, there is evidence (including the photographs from Abu Ghraib, the statements of military interrogators, and the deaths of detainees in American custody) to suggest that the secret C.I.A. interrogation program violates the minimal standards of decency set forth in Common Article 3. Furthermore, the “alternative procedures” may also run afoul of Article 17 of the Third Geneva Convention, which provides that “No…form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever.”14

In addition to authorizing military commissions that violate both international and domestic norms, the MCA amends the War Crimes Act. Prior to passage of the MCA, the War Crimes Act15 implemented the Geneva Conventions by making it a federal crime to violate any provision of Common Article 3.16 The MCA limits war crimes to a subset of Common Article 3 violations.17 Conspicuously excluded are the prohibitions against “humiliating and degrading treatment” and against trials that fail to provide essential guarantees of due process. Contrary to the views espoused by the administration, the decriminalization of such conduct – which applies retroactively to 1997 – will not assist the U.S. in its fight against terrorism. Rather, it will embarrass our allies and be trumpeted by our enemies as evidence of American hypocrisy and disregard for the rule of law, and will expose our own troops to greater risk of abuse should they fall into enemy hands. In an amicus brief filed in Hamdan, retired Generals and Admirals emphasized this point.18

Well aware of the political risk of abrogating the Geneva Conventions, Congress and the President sought political cover in the text of the legislation itself. The MCA contains recitals proclaiming that its provisions satisfy U.S. treaty obligations under Common Article 3.19 It also purports to invest the President with “the authority for the United States to interpret the meaning and application of the Geneva Conventions.”20 However, such proclamations invade the judicial function. As Chief Justice John Marshall said in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”21 In Federalist No. 22, Alexander Hamilton made the same point specifically with respect to treaties:

Laws are a dead letter without courts to expound their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.22

Thus, it is outside the competence of the legislature to dictate what Common Article 3 means or requires, or to delegate such authority to the President. Nevertheless, we can expect this purported grant of authority to result in an Executive determination that aggressive interrogation procedures used at C.I.A. black sites do not constitute “humiliating and degrading treatment” within the meaning of Common Article 3. Because the MCA prohibits any person from invoking the Geneva Conventions as a source of rights enforceable in any American court,23 it is an open question whether courts will ever rule on the effect of such an executive determination or the legality of the conduct it authorizes. These provisions make treaty-based rights a matter of Executive grace, or as Hamilton correctly observed, a dead letter.

The generation of Americans that ratified the Geneva Conventions did not think compliance with these standards overly burdensome. Indeed, the Senate Foreign Relations Committee, in recommending ratification in 1955, said:

Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate, and by encouraging their most widespread adoption…. The practices which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future conflict without the injunction of formal treaty obligations.”24

There was nothing wrong with the language of Common Article 3 in 1955, and there is nothing wrong with it now. The supposed clarifications in the MCA are simply evasions of solemn treaty obligations. The standards established in Common Article 3 are no more vague than many of the most fundamental ones in our domestic legal tradition, including “due process,” “equal protection,” “unreasonable search or seizure,” and “cruel and unusual punishment.” Courts are perfectly capable of interpreting and applying such standards, and have done so throughout our history to ensure that basic rights are protected across changing times and circumstances. The same ought to be true of Common Article 3. To paraphrase former Justice Potter Stewart, though they may not be able to precisely define humiliating and degrading treatment, courts know it when they see it. Unfortunately, in passing the MCA, Congress has undercut our national commitment to protecting basic human rights. Black sites, disappearances, and “alternative procedures” are not tools this country needs, or has ever needed, to defend its values and way of life. On the contrary, they are profoundly antithetical to our values and way of life. If we are, as the President says, “fighting for the cause of humanity,” we must do so in a way that humanity can recognize and support.

* Joseph M. McMillan is a partner at Perkins Coie LLP in Seattle. He has represented Salim Ahmed Hamdan from the inception of his lawsuit in April 2004.

1 President George W. Bush, White House Speech Regarding Military Commissions (Sep. 6, 2006).

2 126 S. Ct. 2749 (2006).

3 Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter Third Geneva Convention], Aug. 12, 1949, 6 U.S.T. 3316.

4 Third Geneva Convention, supra note 3.

5 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter "MCA"].

6 H.R.6054, 109th Cong. (2006).

7 Third Geneva Convention, supra note 3, art. 3.

8 Military Commissions and Standards Used in Trying Detainees: Hearing on H.R.6054 Before the H. Comm. on Armed Services, 109th Cong. (2006)(statement of Brigadier General James C. Walker).

9 MCA § 3(a)(1) (refer specifically to amended § 949a(b)(2)(C)).

10 See, e.g., Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2681 (2006) (“We require exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable.”); Rochin v. People of California, 342 U.S. 165, 173 (1952) (“Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law.”).

11 See MCA § 3(a)(1) (§ 949a(b)(2)(E)(ii)).

12 Id. (§ 949d(d)(2)(A)).

13 Third Geneva Convention, supra note 3, art. 3.

14 Third Geneva Convention, supra note 3, art. 17. The Bush administration has long insisted that the detainees in the war on terror are not prisoners of war (“POW”) and, accordingly, would contend that Article 17 is inapposite. However, Article 5 provides that, should any doubt arise concerning a detainee’s status as a POW, “such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal.” Third Geneva Convention, supra note 3, art. 5. In Hamdan, the Supreme Court did not need to reach the question of whether Article 5 conferred presumptive POW status on the defendant, and expressly reserved judgment on that issue. See Hamdan, 126 S. Ct. at 2795 n.61. The MCA makes no explicit provision for Article 5 hearings, but appears to inaccurately characterize the decisions concerning combatancy made by Combatant Status Review Tribunals (“CSRT”) as POW status hearings required by Article 5. See MCA § 10.

15 18 U.S.C. § 2441 (2000).

16 Id. at § 2241(c)(3).

17 See MCA § 6(b).

18 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).

19 See MCA § 6(a)(2).

20 MCA § 6(a)(3)(A).

21 5 U.S. (1 Cranch) 137, 177 (1803).

22 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

23 See MCA § 5(a).

24 S. Exec. Rep. No. 84-9, at 32 (1955).

Preferred Citation: Joseph M. McMillan, A Pretense of Respect for the Geneva Conventions, 1 HARV. L. POL’Y REV. (Online) (Nov 6, 2006),

http://www.hlpronline.com/2006/07/mcmillan_01.htm

Mobilizing Against the Military Commissions Act of 2006

Posted 2023 days ago by HLPRonline editorial staff

by Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, and Deborah Popowski

Students and professors mobilized against the Military Commissions Act of 2006, submitting a petition to Congress with the signatures of more than 600 legal academics.

On September 28, the Senate passed the Military Commissions Act of 20061 by a 65-34 vote. The House of Representatives had approved the bill the day before by a vote of 253-168. On October 17, President Bush signed the bill, codifying severe restrictions on fundamental rights.

As the bill made its way through Congress, we asked ourselves, and each other, what we could do about it. How could we respond most effectively to the clear threat to human rights and the rule of law posed by the bill and by President Bush’s treatment of detainees? We decided to take action. We drafted a letter to Congress and sought support from legal academics throughout the country. Hundreds of faculty members welcomed the chance to criticize Congress’ acquiescence to the President’s detainee regime. The bill passed and was signed into law, but our experience demonstrates that lawyers, law students, and others are willing to act quickly when the stakes are high. Tapping that energy for meaningful political action plays a critical role in our democracy.

I. Background

The Military Commissions Act of 2006 emerged in response to the Supreme Court’s rejection of the Executive’s conduct in Hamdan v. Rumsfeld;2 the Court had explicitly invited such a Congressional response by criticizing the Executive for acting without Congressional authority. Leading Republicans initially opposed the Administration’s proposed legislation, but then worked out a “compromise” bill. Despite that moniker, the bill won little in terms of oversight, review, or constitutional guarantees, allowing the President to exercise enormous unchecked power.

We describe here how we drafted, circulated, distributed, and publicized a letter of opposition to this so-called compromise. We hope to learn from this mobilization experience, to prepare ourselves better for future battles over fundamental rights, and, in the very act of writing about our experience, to take another step in standing up and speaking out against the grave danger to liberty in this country.

II. From Opposition to “Compromise” to Rushed Legislation

It all happened very quickly. Media sources reported on Thursday, September 21 that Republican Senators John McCain, John Warner, and Lindsey Graham, who had opposed President Bush’s proposed military commissions legislation, had compromised with the White House and sought to pass revised legislation in a week’s time. The text of the compromise, however, appeared to make very few concessions to the Senators, and many of those seemed cosmetic rather than substantive. The Administration’s positions remained virtually unchanged: amnesty for United States officials who may have committed war crimes under American statutes;3 decriminalization of a broad spectrum of violations of the Geneva Conventions;4 presidential power to deem individuals, including citizens, as enemy combatants;5 elimination of the writ of habeas corpus for foreigners deemed enemy combatants by the President or his agents;6 and the continued possibility of capital trials based on secret7 or coerced8 evidence.

We met to discuss possible courses of action and asked professors to help. Professors Minnow and Cavallaro volunteered, but the question remained as to what kind of action could or should be taken. The bill itself used purposefully opaque language, presenting real challenges for analysis and advocacy. Moreover, Congressional leaders and the White House rushed the legislation, confident in the unity of the Republican majority. Passage seemed to be a fait accompli.

Nevertheless, we ultimately decided to draft an open letter to Congress, hoping that this vehicle would provide a time-sensitive way to develop a dissenting argument. As quickly as we could, we analyzed the bill and related legal materials, drafted an initial letter, and began to formulate plans for its distribution.

III. The Advocacy Message: What to Include?

It turned out to be a challenge to decide which arguments to include in order to secure a broad array of professors’ signatures. We balanced our desire to voice all of our objections to the bill’s provisions against the competing need to keep the message focused on a few fundamental advocacy points that would garner support from potential signers and would also resonate with Members of Congress and the American public.

A prime example of this tension arose with the provision of the bill that provides blanket immunity for certain war crimes committed by U.S. officials since 1997.9 Under the provision, individuals who have violated Common Article 3 of the Geneva Conventions10 – but whose violations do not fall within the limited universe of “grave breaches” created under the new Military Commissions Act – are immunized from prosecution for their crimes. The bill thus denies many victims who have suffered cruel, inhuman, or degrading treatment at the hands of U.S. agents the chance to bring their abusers to justice, despite the express illegality of the conduct at the time.

Many of us strongly objected to this aspect of the bill, but we recognized early that we had to weigh our revulsion at this blanket amnesty with the need to rally support. Initial feedback from a few faculty members generally sympathetic to the effort indicated that even they would not want to raise objections to this provision. We concluded that our message would be more broadly compelling if we omitted our own objections to amnesty for past war crimes and instead focused on condemning the bill’s authorization of future objectionable acts. Prospective violations, we believed, would be viewed as a higher priority by many in the legal and political communities. This, then, is the argument reflected in the final letter.

Another dilemma we confronted was how best to portray the range of interrogation techniques that would become legal under the proposed bill.11 On the one hand, much of our motivation for opposing this bill stemmed from our conviction that its language could be used to attempt to provide domestic legal cover for techniques – such as waterboarding – that, in reality, are prohibited forms of torture or cruel, inhuman, and degrading treatment or punishment. If this is the case, then one advocacy strategy would have been to highlight this reality in the starkest possible terms so as to generate more, and more intense, opposition to the bill’s passage. On the other hand, given the likelihood that the bill would be signed into law, our own characterization of the bill as potentially condoning such atrocious conduct could undercut future legal arguments that the statute is more restrictive. Although on its face, the bill’s text might perhaps permit waterboarding, it is also sufficiently ambiguous to allow conscientious lawyers in the government and elsewhere to argue that the bill does not give such permission. Indeed, some of the key Republican Senators believed that the compromise had outlawed waterboarding.12

In its final form, the letter navigated this difficulty by stating our concern that the Military Commissions Act could be read to permit specific types of abusive treatment (such as beatings to the point of leaving bruises). We did not, however, characterize the bill as legalizing torture or cruel, inhuman, or degrading treatment or punishment. We regarded some of the conduct arguably condoned by the bill as violations of the Geneva Conventions and, therefore, absolutely impermissible. But we also knew that some potential signatories had doubts whether the relevant portions of the Geneva Conventions, as a matter of U.S. law, bind American agents now or will do so in the future. Thus, we found ways to point to the bill’s potential shortcomings, while neither arming those who would exploit the statute’s weaknesses nor undermining those who could argue to limit its scope in application. There also remained core elements of the bill we wanted to condemn in no uncertain terms, of course. For example, the letter criticizes provisions of the bill that allow the use of evidence obtained through coercion13 and that deny defendants full access to exculpatory evidence in the government’s possession.14 Both of these provisions violate historic understandings of U.S. Constitutional law under both the Due Process Clause and the Fifth Amendment.15

The final letter thus condemned some of the bill’s most objectionable provisions, while still, we hoped, inviting broad support. Although among ourselves we had discussed many finer details, we ultimately focused on the most salient points, seeking to unite, rather than divide, the group of potential supporters of the effort.

IV. Gathering Signatures, Reaching Congress

Initially, it was not clear whether many members of the Harvard Law faculty would sign the letter. We first circulated it to a small group of people who had criticized the treatment of detainees publicly in the past. By Tuesday morning, 24 hours after we started working, only 10 professors had indicated that they would sign. With the agreement of this core group of writers and contributors, we finalized the draft for circulation to faculty members beyond Harvard beginning Tuesday night, September 26.

We ran an around-the-clock effort to contact law professors around the country, share the letter, and seek support. We started with a list of several hundred professors who had signed a 2004 letter denouncing the use of torture at Abu Ghraib prison in Iraq. We gathered e-mail addresses of other law professors who might be interested in opposing the bill. Time was short, so we prioritized finding faculty at schools with reputations for political engagement; we also sought geographical diversity. As the night wore on, we focused on scholars in the central, then mountain, then pacific time-zone states in order to increase the chance of a quick response.

After sending e-mail solicitations throughout the night, by Wednesday morning, we had received over 300 signatures. Previously uninvolved colleagues and friends from other schools volunteered to help. We spread out around the campus to fax the letter to Senate offices and to make follow-up calls. We called our own senators, urging them to oppose the bill, and to filibuster if necessary.

As the number of signatures climbed to more than 500, we enhanced our lobbying efforts, gaining access to increasingly higher level Congressional staffers working for Senators Arlen Specter, Ted Kennedy, and Harry Reid. We targeted Senator John Kerry, who at 4:00 pm on Wednesday, the day before the crucial Senate votes would begin, had not taken a position on the bill. Ultimately, Senator Kerry spoke vocally against the bill on the Senate floor, but such opposition proved to be too little, too late.

V. Reflections

The bill passed. Advocacy efforts-not just those of law students and professors, but more generally-had also started too late, and had failed to engage broad segments of the population. However, we learned how a handful of engaged students and professors can swiftly provide a platform for others who want to voice opposition. The rapid and widespread response of solicited faculty around the country – over 600 willing signatories replied in roughly 24 hours – suggests that people will not take for granted the jeopardizing of fundamental American legal values by the political branches.

* Stephanie Brewer, Fernando Delgado, Yukyan Lam, and Deborah Popowski are students at Harvard Law School. James Cavallaro is a Clincal Professor of Law at Harvard Law School. Martha Minow is Jeremiah Smith, Jr. Professor of Law at Harvard Law School.

1 Military Commissions Act of 2006, Publ. L. No. 109-336, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S. C.) [hereinafter "MCA"].

2 126 S. Ct. 2749 (2006).

3 See MCA § 6(b).

4 Id.

5 MCA § 3(a)(1) (refer specifically to amended § 948(1)(A)).

6 MCA § 7.

7 See MCA § 3(a)(1) (§ 949j(c), (d)).

8 See id (§ 948r(c), (d)).

9 See MCA § 6(b).

10 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316.

11 See MCA § 6(b).

12 For instance, Senator McCain states that he is “confident that [the Military Commissions Act] will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged.” Press Release, Senator John McCain, McCain Urges Final Passage of the Military Commissions Act of 2006 (Sept. 28, 2006), available at

http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=2456.

13 See MCA § 3(a)(1) (§ 948r(c), (d)).

14 See id (§ 949j(d)).

15 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Mister Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977); Note: Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962 (2005).

Preferred Citation: Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, & Deborah Popowski, Mobilizing Against the Military Commissions Act of 2006, 1 HARV. L. & POL’Y REV. (Online) (Nov. 6, 2006),

http://www.hlpronline.com/2006/06/minow_01.html.

Voting System Testing and the Enclosure of Transparency

Posted 2028 days ago by HLPRonline editorial staff

By WARREN STEWART

Voting machine manufacturers keep their technology from public view using non-disclosure agreements and claims of trade secrecy. This posture is incompatible with the manufacturers’ access to the public commons, and Congress and state legislatures should put an end to it.

In a recent paper, Joseph Lorenzo Hall of the University of California at Berkeley School of Information described the trend of “enclosure of transparency” in American elections.1 Over the course of the nation’s history, the mechanisms of the electoral process have become progressively more privatized and more opaque, culminating with the use of entirely electronic voting systems. As Hall writes:

When ‘counting votes’ consists of running proprietary software to process vote data, voters can no longer ‘observe’ the canvassing process. Nor can regulators or experts, with whom the public places its trust, easily gain access to and evaluate whether votes are being counted as they were intended to be cast.2

The 2000 election was a wake up call that caused many Americans to pay attention to the administration of elections for the first time. Ironically, the public’s increasing scrutiny of the election process comes at a time when that process has become increasingly hidden from view. Nowhere is this lack of transparency more evident than in the process through which voting systems are tested and certified for use in elections.

I. Background: The Existing System

Federal standards for voting equipment were first established in 1990.3 In 1994, the National Association of State Elections Directors (NASED) created the first national program to test and qualify voting systems to comply with the standards. Under this initial program, voting equipment manufacturers contract with private laboratories to test proposed voting systems. Those laboratories, referred to collectively as the Independent Testing Authority (ITA), submit reports to NASED. Having completed this process successfully, a given voting system is deemed NASED qualified.4 Most states have made the ITA process and/or NASED qualification a prerequisite of state certification as well.5

The ITA system has been widely criticized. At 2004 Congressional hearings, Carnegie Mellon Computer Science professor Michael I. Shamos testified that “the system we have for testing and certifying voting equipment in this country is not only broken, it is virtually nonexistent.”6 He recommended that “[i]t . . . be re-created from scratch or we will never restore public confidence in elections.”7 Among Dr. Shamos’ first recommendations was that the manufacturers should not pay the laboratories that test their equipment. This arrangement riddles the existing system with conflicts of interest and raises legitimate questions concerning the laboratories’ ability to safeguard the public interest. The credibility of the current process has been further damaged by the severe reliability, security, and accuracy problems revealed in a steady stream of academic and governmental studies and in hundreds of cases of malfunctions in electronic voting machinery.8 Most importantly for purposes of this essay, the existing system is governed by secrecy and self-interest rather than transparency and the public good.

II. A Flawed Proposal: Perpetuating Secrecy at the Public’s Expense

Thus the community of individuals and organizations concerned about the accuracy and integrity of the election process welcomed the July 2006 announcement that the United States Election Assistance Commission (EAC) would propose a new program for testing and certifying voting systems for use in federal elections. The proposed program,9 released for public comment in October 2006, includes some significant improvements over the existing certification process. However, despite some advances, the EAC’s proposed approach is far too deferential to the interests of voting equipment manufacturers and inadequately reflects the interests of the primary stakeholders in the election process – the voters. Most critically, on fundamental questions of transparency and public oversight, it is by and large a continuation of the unacceptable existing system.

The EAC’s proposed program perpetuates the secrecy of the testing and certification process. Distrust of election machinery results from the lack of transparency of the software used to administer elections. How does this software convert screen touches or marks on paper to votes intended for a particular candidate? How does it tally those recorded votes? How does an election official know that the recorded behavior of the software reflects the actions of the voters? The answers to these and other questions are hidden behind contracts with rigorous non-disclosure clauses, as well as the manufacturers’ assertions that such operational details are trade secrets.

Such claims of secrecy are fundamentally incompatible with the manufacturers’ access to the public commons. Unlike patents, which require substantial disclosure, claims of trade secrecy obstruct meaningful oversight of voting systems. The manufacturers are asking the public to deploy private systems for use in the public sphere. The manufacturers granted such access gain the imprimatur of the federal government and substantial financial reward. They should not keep crucial information regarding voting systems from the public that bestows these privileges on them. Ultimately, the consequences of such secrecy include diminished accuracy in elections and reduced competition in the voting machine industry.

The manufacturers are not the only ones who take advantage of the federal imprimatur and prioritize secrecy. Election officials, many of whom have staked their careers on an embrace of unreliable, insecure voting technology, do so as well. NASED president Kevin Kennedy recently stated, “We know the equipment works because it’s been qualified to federal standards.”10 His conclusion is an empty one. Ample evidence demonstrates that meeting federal qualifications does not mean voting equipment works. The EAC’s proposed system does nothing to ameliorate the secrecy problems.

III. Solutions: Legislation and Regulation

North Carolina already mandates public disclosure of voting system software.11 Three of the four major vendors (Election Systems and Software, Sequoia Voting Systems, and Hart Intercivic) have stated publicly that they would meet software disclosure requirements in legislation proposed in California, and a bill that would require voting system software disclosure nationwide enjoys the co-sponsorship of 220 Members of the United States House of Representatives.12 However, the EAC need not await new legislative action. The Help America Vote Act of 2002 (HAVA) grants the EAC authority to “provide for the testing, certification, decertification, and recertification of voting system hardware and software.”13 Consistent with this authority, the EAC should require that manufacturers and testing laboratories agree to disclose all evidence supporting the merchantability or fitness for use of systems deployed to administer public elections. Similarly, the testing laboratories should be required to disclose their methods, work, and results to the EAC.

In addition to demanding transparency and public oversight of the vendor-lab arrangement, the EAC should open the testing program to interested, independent parties. While we will never know what defects have been uncovered by the current testing regime, there is an alarming list of security vulnerabilities in voting systems that have passed the current testing process and have been used in elections.14 A recent independent review was highly critical of the test plan of the laboratory that has done the bulk of all voting system software testing.15

Rather than minimal functional testing required for certification to standards, the EAC should sponsor expanded examination and testing by academics and other interested parties. This additional testing could serve to improve and refine the subsequent versions of the voting system standards. The more independent eyes that examine these machines, the more secure our democracy will be.

IV. Conclusion

The current crisis of confidence in the electoral process demands bold actions from the EAC; its current proposal is simply not sufficient. Even without legislative changes, the EAC can take significant steps towards restoring public confidence in the election process by requiring manufacturers to make their systems transparent; by requiring testing laboratories to make their methods, work, and results transparent; and by broadening the testing effort. The EAC should seize this opportunity to promote transparency and public oversight of the way votes are cast and counted in the United States.

* Warren Stewart is the Policy Director of VoteTrustUSA, a nonpartisan election integrity advocacy network. He would like to acknowledge the significant contributions of John Washburn in his preparation of this essay.

Joseph Lorenzo Hall, Transparency and Access to Source Code in E-Voting 1 (USENIX/ACCURATE Electronic Voting Technology Workshop, Working Paper, 2006), available at http://ssrn.com/abstract=909582.

Id. at 3.

FEDERAL ELECTION COMMISSION, PERFORMANCE AND TEST STANDARDS FOR PUNCHCARD, MARKSENSE, AND DIRECT RECORDING ELECTRONIC VOTING SYSTEMS (1990), available at

http://www.cs.duke.edu/~justin/voting/docs/FEC_1990_Voting_System_Standards.pdf.

See NATIONAL ASSOCIATION OF STATE ELECTION DIRECTORS, GENERAL OVERVIEW FOR GETTING A VOTING SYSTEM QUALIFIED (2006), available at

http://www.nased.org/ITA%20Information/NASEDITAProcess.pdf.

See UNITED STATES GENERAL ACCOUNTABILITY OFFICE, STATUS AND USE OF FEDERAL VOTING EQUIPMENT STANDARDS 7 (2001), available at

http://www.gao.gov/new.items/d0252.pdf.

Testing and Certification for Voting Equipment: How Can the Process Be Improved?: Hearing Before the H. Comm. on Science, Subcomm. on Env., Tech., and Standards, 108th Cong. (2004) (statement of Michael I. Shamos).

Id.

For a review of some of these findings, see Voting Machines: Will the New Standards and Guidelines Help Prevent Future Problems?: Hearing Before the H. Comm. on Science, 109th Cong. (2006) (statement of David Wagner), available at

http://www.house.gov/science/hearings/full06/July%2019/index.htm.

UNITED STATES ELECTION ASSISTANCE COMMISSION, DRAFT TESTING AND CERTIFICATION PROGRAM MANUAL (2006), available at

http://www.votetrustusa.org/pdfs/EAC/VSTCProgram Manual DRAFT.pdf.

Dan Balz & Zachary A. Goldfarb, Major Problems at Polls Feared, WASH. POST, Sep. 17, 2006, available at

http://www.washingtonpost.com/wp-dyn/content/article/2006/09/16/AR2006091600885.html.

See N.C. Gen. Stat § 163-165.7(a)(6) and N.C. Gen. Stat § 163-165.9A(a)(1), available at http://www.ncleg.net/Sessions/2005/Bills/Senate/HTML/S223v7.html.

H.R. 550, 109th Cong. (2005), available at

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.550.

42 U.S.C. § 15371(a)(1) (2002).

See, e.g., Harri Hursti, Critical Security Issues with Diebold Optical Scan Design, Black Box Voting, Inc. (July 4, 2005), available at http://www.elections.state.ny.us/NYSBOE/hava/

CIBERSecurityMasterTestPlanReview-Version1.pdf

New York State Technology Enterprise Corporation, Review of CIBER Master Test Plan and CIBER Security Master Test Plan (Sep. 27, 2006), available at

http://www.elections.state.ny.us/NYSBOE/hava/

CIBERSecurityMasterTestPlanReview-Version1.pdf

Preferred Citation: Warren Stewart, Voting System Testing and the Enclosure of Transparency, 1 HARV. L. & POL’Y REV. (Online) (Nov. 1, 2006),

http://www.hlpronline.com/2006/06/stewart_01.html.

Paper Ballots Address a Fundamental Threat to Democracy

Posted 2028 days ago by HLPRonline editorial staff

by Mary Howe Kiraly

Voters should demand paper ballots that election officials can count manually and in a transparent fashion. Nothing less than our democracy is at stake.

In 2001, after the Supreme Court settled the tumultuous presidential election and George W. Bush took office, a consortium of major media outlets sponsored a review of the nearly 172,000 disputed ballots in Florida. That review, undertaken by the National Opinion Research Center of the University of Chicago, produced contradictory findings. It first concluded that, had the hand count of the ballots proceeded as per the order of the Florida Supreme Court, George W. Bush would have been declared the winner by fewer than 500 votes. Its second conclusion was that, had the intent of the voters been accurately captured by the ballots, Al Gore would have won by more than 10,000 votes.1 The dilemma of the 2000 election haunts Americans to this day.

The good news in 2000 in Florida was that there were paper ballots available to be hand counted. The bad news was that a hand count could not produce a definitive answer as to who had rightfully “won” the election. The Florida recount controversy shocked the national consciousness and led to the quick passage of the Help America Vote Act of 2002 (HAVA).2 HAVA may have been well intended, but it has produced elections systems that are in a continuous state of confusion, reaction, and crisis.

American elections have always been vulnerable to manipulation. In the past, however, an effort to change an election outcome required either access to individual ballot boxes and the forging of thousands of ballots or making physical alterations to individual mechanical voting machines. Following passage of HAVA and the rapid shift to electronic voting systems, the potential for large-scale vote manipulation became a serious concern. Given the opacity of the computerized systems through which votes now pass, a false election outcome might be impossible to detect. This fall, with electronic voting technologies in place in the vast majority of states, concerns about resolving “voter error” have been replaced by concerns that a small group of maliciously motivated individuals, or even a single well-placed person, could completely change an election outcome.

HAVA provided billions of dollars in incentives for states to abandon punch card and lever voting systems and to adopt modern technologies accessible to voters with disabilities. With billions of dollars from the federal government at stake, and additional hundreds of millions from the states, a poorly regulated market for electronic voting technologies emerged, practically overnight.

In my view, at this point in time the election system can be protected most by a return to hand counted paper ballots. This is a fundamentally practical solution, advocated by computer scientists, auditors, statisticians, and election integrity activists.3 The dual goals of those who advocate paper balloting are accuracy in recording votes and transparency in the vote count. Voters must be permitted to mark their ballots in secret, but ballots must be cast and counted in a transparent process that is open to impartial observation. Computerized voting systems hide the tabulation process from voters and candidates. As Stanford University Professor David Dill has said, “The real purpose of an election is not to convince the winners that they won, but to convince the losers that they lost.”4

Documented vulnerabilities in computerized election systems offer the most dramatic reason for seeking simpler, more transparent, more manageable systems that will provide durable paper ballots for audits and recounts. The e-voting system most criticized for its lack of transparency is the paperless touch screen voting machine.5 Computer and election systems expert Douglas Jones has described direct recorder electronic voting machines (DREs) as, “little more than repackaged personal computers with touch screen input and special software to make them function as voting systems.”6 The vulnerabilities of personal computers are well known. These vulnerabilities are the reason we create paper copies of our important documents and still have filing cabinets in the computer age.

Paperless DREs were first deployed on a large scale in states in 2002. In January of that year, Diebold Corporation purchased Global Election Systems and entered the voting equipment market. Maryland implemented the Diebold AccuVote TS paperless touch screen system in four counties that year. In Allegany County, the long-serving Speaker of the Maryland House of Delegates was defeated by a little known challenger running for election for the first time.7 The margin of victory was several hundred votes. In Georgia, which used the same system, Senator Max Cleland lost his reelection bid despite pre-election polls showing him to be well ahead of his challenger.8 Because these systems produced no paper ballots that could be confirmed by the voter, no meaningful audit or recount was possible. Dramatic upsets do occur in politics. However, unverifiable outcomes in 2002 were the beginning of a series of controversies that have arisen over the security, accuracy, and verifiability of electronic voting systems.

Existing testing and certification standards are largely controlled by the manufacturers. None of the many flaws and vulnerabilities in e-voting systems has been disclosed as a result of testing or certification regimes. In fact, the voting systems laboratories that comprise the Independent Testing Authority (ITA) are paid by the manufacturers and have comprehensive non-disclosure agreements with them.

To protect voting equipment requires many steps: oversight of a lengthy chain of custody; processes involving special numbered sealing tapes and locks; separate packaging for memory cards and voter access cards; and lengthy start up and end of day procedures. Voting machines are often transported to polling stations days in advance. In some states, poll workers have taken them home or stored them in garages. Only a few minutes are needed for a knowledgeable and motivated person to access the system and change an election outcome. Moreover, the volunteer election officials and poll workers who have traditionally managed the election process are generally unqualified to address problems that arise on Election Day. States are often dependent on the technicians provided by manufacturers to service machines.9 Increasingly, every aspect of our election process is controlled by private for-profit corporations, accountable to stock holders rather than to voters. Some even claim ownership of the electronic voter database that is created in an election.10

Moreover, even if election workers abided by all of these protective measures, voters would still have cause to doubt the security of the voting system for a critical reason: manufacturers deem the source codes that run their voting systems proprietary trade secrets and do not permit independent authorities to inspect the codes for errors, viruses, or malicious programming.

For all of these reasons, the implementation of a paper ballot-based system that can be hand counted or audited has become the gold standard for computer professionals and voting integrity activists. More than 95% of the 80,000 members of the Association of Computing Machines (ACM) support paper ballots with an automatic audit provision for tabulation verification.11

The constitutional authority to administer elections rests with the states. States have long had processes for printing, marking, counting, and storing paper ballots. State governments should implement better ballot design, greater simplicity and uniformity in ballot marking procedures, and efficiency and standardization in the processes for hand counting. State legislatures should pass legislation making the paper ballot the official ballot of record and authorizing the hand counting of ballots for election audits and recounts. Unfortunately, in the aftermath of the hanging chad debacle of 2000, some states have enacted legislation which actually prohibits the hand counting of the paper ballots that are produced in optical scan voting systems. This must change.

The ultimate goal should be to have paper ballots counted by hand. In the interim, an optical scan system that enables an audit in which one in ten ballots is hand counted at the voting precinct on election night would be an acceptable way to verify the election outcome.

We have been dealing with the repercussions of the 2000 election for six years. Our goal should be to return the management of Election Day processes to the civil servants in our local boards of elections, and to the volunteer poll workers who operate the precincts. We should demand to be allowed to observe a transparent vote count. We should guard against implementing any system that further removes the voter from the outcome of the election. Our democracy is at stake.

* Mary Howe Kiraly has worked with nonpartisan national organizations advocating a paper ballot.

1 Kirk Wolter, Diana Jergovic, Whitney Moore, Joe Murphy & Colm Muircheartaigh, Reliability of the Uncertified Ballots in the 2000 Presidential Election in Florida, 57 Am. Statistician 1 (2003), available at http://www.amstat.org/misc/PresidentialElectionBallots.pdf. See also, Dan Keating, Democracy Counts: the Media Consortium Ballot Counting Project (American Political Science Association Annual Meeting, Working Paper, August 2002), available at

http://www.aei.org/docLib/20040526_KeatingPaper.pdf.

2 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C.).

3 See, e.g., BRUCE O’DELL, ELECTION DEFENSE ALLIANCE, AUDITABILITY: WHAT DOES AUDITABILITY REALLY MEAN FOR ELECTIONS?,

http://www.electiondefensealliance.org/auditability.

4 Voter Verification in the Federal Elections Process: Hearing Before the S. Rules Comm., 109th Cong. (2005) (statement of David L. Dill), available at

http://rules.senate.gov/hearings/2005/Dill062105.pdf.

5 Even optical scan systems that use paper ballots pose a risk. The famous demonstration “hack” performed by Harri Hursti on a system in Leon County, Florida, was accomplished on such a system.

6 Douglas W. Jones, Associate Professor, University of Iowa, Address to the League of Women Voters of Johnson County: Counting Votes with Computers (May 16, 2001), available at

http://www.cs.uiowa.edu/~jones/voting/lwv.html.

7 Ivan Penn and Stephanie Desmon, Contenders Vie to Take Job as House Speaker, BALTIMORE SUN, Nov. 7, 2002.

8 See Thom Hartmann, Exit Polls Right, Tallies Wrong?, ALTERNET (Nov. 5, 2004), available at http://www.alternet.org/election04/20416/.

9 See, e.g., Deborah Hastings, Problems Plague Election Administrators, ABCNEWS.COM (Oct. 20, 2006), available at http://abcnews.go.com/Politics/wireStory?id=2591877.

10 See, e.g., Lisa Demer, State Rebuffs Raw Vote Demand, ANCHORAGE DAILY NEWS (Jan. 24, 2006), available at http://www.adn.com/news/alaska/story/7386582p-7298824c.html (recounting the refusal of the Alaska Division of Elections to give the state Democratic party the electronic voting file).

11 David L. Dill, Testimony Before the Commission on Federal Election Reform (American University Carter-Baker Commission) (April 18, 2005), available at

http://www.verifiedvotingfoundation.org/article.php?id=5987.

Preferred Citation: Mary Howe Kiraly, Paper Ballots Address a Fundamental Threat to Democracy , 1 HARV. L. & POL’Y REV. (Online) (Nov. 1, 2006),

http://www.hlpronline.com/2006/06/kiraly_01.html.