forthcoming scholarship

November 27, 2009

The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction

Matthew C. Waxman (Columbia)

Michigan Journal of International Law (forthcoming)

The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Colliding with this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.

Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses

Matthew C. Waxman (Columbia)

Case Western Reserve Journal of International Law (forthcoming)

Read the rest of this entry »


2010 Lieber Society Military Prize Call for Papers

November 27, 2009

The Lieber Society, an Interest Group of the American Society of International Law, bestows each year, without regard to nationality, a prize for an exceptional writing that enhances understanding of the law of war by a person serving in the regular or reserve armed forces of any nation.

The Prize. The winner will receive a certificate confirming that he or she has won the 2010 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select two additional persons to receive Lieber Society Certificates of Merit.

Request for Assistance. Any person receiving this Call for Papers who is aware of an exceptional writing that meets the qualifications of this competition is requested to nominate the paper directly to the Lieber Society and forward this Call to the author of that paper.

Definition of the Law of War. For this competition, the Law of War is that part of international law that regulates the conduct of armed hostilities. Papers may address any aspect of the law of war, including, but not limited to: the use of force in international law, the conduct of hostilities during international and non-international armed conflicts, protected persons and protected objects, the law of weapons, rules of engagement, treatment of detainees, to include interrogation procedures, and occupation law. Papers addressing practical problems confronting members of armed forces are preferred.

Qualifications for entering the competition. Persons submitting papers do not have to be ASIL members. They may be citizens of any nation, but they must be a member of their nation’s regular or reserve armed forces.

Papers that may be entered. Papers submitted in this competition must be in English (or translated into English if written in another language) and not more than 35 pages long if printed with single line spacing or 70 pages if written with double line spacing. Both papers that have been published and papers that have not been published will be considered for the Prize.

Required Contact Data. All submissions must contain the following data on the author of the paper: full name and rank or rating, current postal and e-mail addresses, current telephone and fax numbers. If a person other than the author is making the submission, it must also contain the above data for the person submitting the paper.

Deadline for submitting papers. Papers for the 2010 competition must be received no later than Friday, January 2, 2010.

Use of email to submit papers. Electronic submissions in Adobe format (.pdf) or Microsoft Word (.doc) will be accepted. They should be sent to ejensen3@law.fordham.edu

Use of the postal system to submit papers. Submissions by postal mail must be sent to:

Eric Talbot Jensen
6322 Hillsborough Drive
Falls Church, VA 22044

If the postal system is used, two copies of the paper must be submitted.

Acknowledgement of submissions. All submissions will be acknowledged by e-mail.

Announcement of winner. The winner and any persons receiving Certificates of Merit will be announced at the 2010 Annual Meeting of the American Society of International Law in Washington, DC, March 2010.


news from the ABA Standing Committee: breakfast event with Judge Lamberth re Article III terrorism trials; GTMO/BTIF habeas database; audio of al panels and speakers from the recent Review of the Field Conference

November 24, 2009

A lot of interesting material emerging out of the ABA Standing Committee on Law and National Security

1)     Next Standing Committee Breakfast Program – “Trying Terrorists in Article III Courts” — December 17, 2009 – 8:00 a.m. – University Club – keynote speaker will be Chief Judge Royce C. Lamberth, United States District Court for the District of Columbia. Letter of invitation and registration form attached.

2)     Searchable database created by Standing Committee containing every Guantanamo and Bagram detainee habeas petition brought before the DC courts since the Supreme Court decision – details below

3)     Nineteenth Annual Review Conference audio recording of every panel and keynote speaker now posted on website – www.abanet.org/natsecurity

On June 12, 2008, the Supreme Court held in Boumediene v. Bush that: “[T]he costs of delay can no longer be borne by those who are held in custody [at Guantanamo Bay]…The detainees in these cases are entitled to a prompt habeas corpus hearing.” While this ruling established definitively the right of habeas corpus for detainees at Guantanamo, it also left unresolved many important questions about how these habeas petitions would be adjudicated. As a consequence, the DC District Court and Court of Appeals have been charged with deciding such issues as: the substantive scope of the Executive’s detention authority; the reach of the suspension clause to Bagram; whether conditions of confinement are open to habeas challenge; standards for admitting hearsay into evidence; and procedures for handling classified intelligence reports.

In one of his first acts as chair of the Standing Committee, Harvey Rishikof organized a project to document this habeas litigation. The end product of this effort is a searchable database, created by the Standing Committee, containing every Guantanamo and Bagram detainee habeas petition brought before the DC courts since the Supreme Court decision. We hope the database will prove useful to legal scholars, practitioners, and journalists studying this issue, and we encourage you to send along suggestions for improving its functionality to our program assistant, Matt Owens, at owensm@staff.abanet.org.

To begin using the database, click HERE.


indictments and other developments in Minneapolis/Somalia investigation; United States v. Tarraf

November 24, 2009

1. Various developments in the Minneapolis/Somalia investigation

Several new developments in the ongoing investigation into the recruitment of young men in the Minneapolis area to travel to Somalia to join al-Shabaab, according to this DOJ National Security Division announcement.  Unfortunately the announcement does not link to the underlying documents (hint, hint), but in any event here is the gist of the announcement:

Terrorism charges have been unsealed today in the District of Minnesota against eight defendants. According to the charging documents, the offenses include providing financial support to those who traveled to Somalia to fight on behalf of al-Shabaab, a designated foreign terrorist organization; attending terrorist training camps operated by al-Shabaab; and fighting on behalf of al-Shabaab.

Thus far, 14 defendants have been charged in the District of Minnesota through indictments or criminal complaints that have been unsealed and brought in connection with an ongoing investigation into the recruitment of persons from U.S. communities to train with or fight on behalf of extremist groups in Somalia. Four of these defendants have previously pleaded guilty and await sentencing. Read the rest of this entry »


ali v. obama; bin Mohammed v. Obama; al Hajji v. Obama

November 23, 2009

1. Abdal Razak Ali v. Obama (D.D.C. Sep. 24/Nov. 23) (denying GTMO habeas petitioner’s motion for expedited judgment)

This opinion by Judge Lamberth was issued on September 24, but appears to have just been posted publicly in redacted form.  Because of the procedural posture, the court accepted as true all the allegations in the government’s factual return, and on that basis found that Ali is detainable as a functional member of “enemy forces” within the scope of the AUMF.  Whether the government will be able to prove these factual allegations at the merits hearing remains to be determined, of course, but in the meantime the opinion is another useful opportunity to understand what past conduct suffices in the eyes of the judges to merit detention (assuming that conduct can be proven).

Here, the discussion is partially redacted, but it appears the court found significant a range of factors including the receipt of military style training (on at least two occasions in this instance), the use of a kunya (alias), the fact that other members of the enemy force knew this person by that kunya, the possible use of other aliases suggesting the petitioner was from Libya, claims by others that they saw petitioner in Afghanistan acting as a “driver” (presumably for al Qaeda), and the fact that petitioner was in Afghanistan in fall 2001 and then later was captured in Pakistan at the “Zubaydah house.”  Judge Lamberth specifically rejected the claim that reliance on his presence at the Zubaydah house amounted to guilt by association.

2. Farhi Saeed bin Mohammed v. Obama (D.D.C. Nov. 19) (granting habeas relief to a GTMO detainee) (order only)

Judge Kessler in this order grants habeas relief to bin Mohammed, indicating that the underlying opinion remains classified for the moment.

3. Abdullah bin Omar al Hajji v. Obama (D.D.C. Nov. 23) (dismissing habeas petitions by former GTMO detainees) (same order issued in three other cases)

In these orders Judge Leon dismisses habeas petitions sought to be maintained by former GTMO detainees who allege that they remain in constructive US custody despite being transferred to Libya, Tunisia, and Afghanistan and that they continue to suffer consequences because of their earlier detention (specifically, detention by their own governments).  Judge Leon dismissed the first ground for continued jurisdiction as “rank speculation,” citing Munaf v. Geren and the DC Circuit opinion in Kiyemba as authority for not second-guessing the executive branch assertion that the continuing detention is not “on behalf of the United States.”  Judge Leon dismissed the second ground for similar reasons, and also because the court lacks authority to order a foreign government to release these individuals.


United States v. Sattar; State Secrets Privilege event at American U tomorrow; forthcoming scholarship

November 17, 2009

1. United States v. Sattar (2d Cir. Nov. 17, 2009)

A substantial victory for the Justice Department this morning: in aset of opinions totaling 191 pages (!), a Second Circuit panel (Sack, Calabresi, and Walker) has affirmed the convictions of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar, and has remanded for resentencing on grounds that could result in a heftier sentence.   From the introductory section:

In particular, we affirm the judgments as to each defendant’s conviction of conspiring to defraud the United States, in violation of 18 U.S.C. § 371, by violating SAMs imposed upon Abdel Rahman. Contrary to the defendants’ arguments, the evidence is sufficient to sustain these convictions. Moreover, we reject both Stewart’s argument that, as a lawyer, she was not bound by the SAMs, and her belated argument collaterally attacking their constitutionality. We affirm as to Sattar’s conviction of conspiring to murder persons in a foreign country in violation of 18 U.S.C. § 956, and his conviction of soliciting persons to commit crimes of violence — viz., murder and conspiracy to commit murder – in violation of 18 U.S.C. § 373. We conclude that the evidence is sufficient to sustain these convictions, especially in light of testimony establishing that Sattar attempted to undermine a unilateral cease-fire by an Egyptian terrorist organization and to draft a fatwa calling for, inter alia, the killing of “Jews and Crusaders.” Read the rest of this entry »


SDNY and EDVA to “co-manage” the prosecution of the 9/11 defendants, with the case to be tried in SDNY

November 13, 2009

KSM, Bin Attash, Bin al Shibh, Ali Abdul Aziz Ali, and al Hawsawi to be prosecuted in SDNY

DOD and DOJ today jointly announced that these five individuals will be tried in the Southern District of New York, with prosecutors from both SDNY and the Eastern District of Virginia will “co-manage” the case (an interesting resolution of the reported inter-office tug-of-war to get this case).  The press release is here.  It appears the men will be held pending trial at the Metropolitan Correctional Center in Foley Square (adjacent to the courthouse and SDNY offices), just as Ramzi Yousef and other terrorism-related defendants have been held in the past.   It will be interesting to see which SDNY judge draws the case.


final reminder: ABA National Security Law Conference this Thursday and Friday in DC

November 10, 2009

ABA Standing Committee on Law and National Security, Annual Review of the Field of National Security Law (November 12, 13)

This is always a terrific event.  I hope to see many of you there.  From the ABA press release:

GITMO DETAINEES, NARCO-VIOLENCE AND CYBERSECURITY ALL TOPICS AT ABA’S NATIONAL SECURITY CONFERENCE

WASHINGTON, D.C., Nov. 9, 2009 – With the President’s deadline to shut down Guantanamo rapidly approaching, are we legally prepared with a strategy to handle GITMO detainees? National security issues such as these as well as legislative updates, modern piracy issues, narco-violence along the border and cybersecurity will be explored during the American Bar Association’s 19th Annual Review of the Field of National Security Lawconference this Thursday and Friday, November 12 and 13 at the Renaissance Washington, D.C. Hotel, Renaissance Ballroom, 999 9th Street, N.W., Washington, D.C.

Opening remarks will be made by Carolyn Lamm, ABA president, and Harvey Rishikof, Chair, ABA Standing Committee on Law and National Security.

Read the rest of this entry »


HRF reports on detention policy in Afghanistan; United States v. Buddenberg

November 5, 2009

1. Human Rights First: Two reports concerning detention policy in Afghanistan

HRF released two reports on detention issues in Afghanistan today. Here is the press release.

http://www.humanrightsfirst.org/media/usls/2009/alert/527/index.htm

Fixing Bagram: Strengthening Detention Reforms to Align with U.S. Strategic Priorities.

This policy paper analyzes the detention reforms undertaken by the Obama administration in September 2009 and provides recommendations on further reforms that are needed to bring U.S. detention practices in accordance with international law and to further U.S. counterinsurgency goals.

Undue Process: An Examination of Detention and Trials of Bagram Detainees in April 2009.

This report is based on research in Afghanistan in April 2009 where we interviewed former Bagram detainees held by the U.S. military and describes how they were captured, treated, and what means were available to them to challenge their detention. The report also contains our recommendations submitted to the Detention Task Force, CENTCOM, and Department of Defense in May 2009.

2. United States v. Buddenberg (N.D. Cal. Oct. 28, 2009) (denying constitutional challenge to Animal Enterprise Terrorism Act)

What’s that you say?  Haven’t heard of the AETA, aka 18 USC 43?  It’s a pretty interesting statute, and the court in this instance (Judge Whyte) rejected a series of facial constitutional challenges to it involving overbreadth, vagueness, and First Amendment claims.  I reprint the whole thing below, in case anyone is interested:

(Cite as: 2009 WL 3485937 (N.D.Cal.))

United States District Court, N.D. California,Only the Westlaw citation is currently available.

San Jose Division.

UNITED STATES, Plaintiff,

v.

Joseph BUDDENBERG, Maryam Khajavi, Nathan Pope a/k/a Nathan Knoerl, and Adriana

Stumpo, Defendants.

No. CR-09-00263 RMW.

Oct. 28, 2009.

J. Tony Serra, Kali Saveria Grech, Omar C. Figueroa, Robert Jay Bloom, James McNair Thompson, Thomas Joseph Nolan, Jr, Rachel Anne Meeropol, for Defendants.

Elise Becker, Grant P. Fondo, for United States.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

RONALD M. WHYTE, District Judge. Read the rest of this entry »


Zahir v. Bush; forthcoming scholarship

November 5, 2009

1. Zahir v. Bush (D.D.C. Oct. 28, 2009) (discovery issues in GTMO habeas)

Judge Roberts has published a detailed, 15-page decisiongranting in part and denying in part Zahir’s motion for permission to propound various interrogatories in this habeas proceeding.  The opinion contains extended discussion of what facts will be relevant to the ultimate merits determination, and is worth a read in that respect.

2. Forthcoming Scholarship

“Mexican Drug Violence and Adversarial Experiments”

Wake Forest Univ. Legal Studies Paper No. 1481263

RONALD F. WRIGHT, Wake Forest University – School of Law
Email: wrightrf@wfu.edu

Two remarkable developments mark this time in Mexican criminal justice as profoundly different. First, the country is suffering through wrenching violence connected with the drug trade. Second, Mexico has embarked on procedural changes both at the federal and state levels. Many characterize this procedural transformation as a shift from an inquisitorial to an adversarial model of criminal procedure. I suggest, however, that the reforms do not simply endorse the strengths of a particular adversarial fact-finding method. Rather, the codes create meaningful competition for the public prosecutors in Mexico during the investigation, trial, and punishment of alleged criminals.

This essay considers the connections between these two events, both in the past and the future. Did one development cause the other, or did they both flow from a single cause? First, I consider the “inevitability hypothesis.” According to this view, procedural reform would have happened with or without the drug violence, and the fact that they occurred at the same moment is simply a coincidence. I believe the stronger account, however, is the “violence-as-causation” hypothesis. According to this account, the extraordinary drug violence of 2007 made possible a sweeping set of procedural changes. The violence was necessary to motivate actors to embrace major institutional change.

“American Hegemony and the Foreign Affairs Constitution”

Arizona State Law Journal, Vol. 41, 2009
Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 09-019
NYU School of Law, Public Law Research Paper No. 09-03

ROBERT KNOWLES, Chicago-Kent College of Law
Email: rknowles@kentlaw.edu

This Article uses insights from international relations theory to challenge the received wisdom that U.S. courts are incompetent to decide foreign affairs issues. Since September 11 in particular, proponents of broad executive power have argued that the Judiciary lacks the Executive’s expertise, speed, flexibility, uniformity, and political savvy necessary in foreign affairs. For these reasons, legal doctrine has long called for especially strong foreign affairs deference to the Executive.

This Article argues that special deference is grounded in an outmoded version of the popular theory of international relations known as realism. Realism views the world as anarchic, nations as opaque to the outside world, and geopolitics as though a few great powers manage the international system through realpolitik and the balance of power. When incorporated into constitutional foreign affairs law, these realist tenets lead to a model that prioritizes executive branch competences over judicial ones, but offers little guidance on how to weigh foreign affairs effectiveness against other constitutional values such as liberty and accountability.

The author proposes a new, “hegemonic” model of desired institutional competences in foreign affairs law that takes account of the transformed post-Cold War world. America dominates the globe militarily, has a political system accessible to outsiders, provides public goods for the world, and plays a dominant role in defining enforceable international law. This American hegemonic order will persist for some time despite threats posed by terrorism and the rise of powers such as China and Russia. Under the hegemonic model, courts serve America’s foreign affairs interests by maintaining stable interpretation of the law and bestowing legitimacy on acts of the political branches. Special deference is now unwarranted. This Article concludes by explaining why Boumediene v. Bush and other recent enemy combatant cases are consistent with the hegemonic model.

“Offshoring the War on Terror”

Kal Raustiala, DOES THE CONSTITUTION FOLLOW THE FLAG?: THE EVOLUTION OF TERRITORIALITY IN AMERICAN LAW, Oxford University Press, 2009
UCLA School of Law Research Paper No. 09-07

KAL RAUSTIALA, University of California, Los Angeles – School of Law
Email: Raustiala@law.ucla.edu

Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book on Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.

“Congress’s Role in Cyber Warfare”

Journal of National Security Law & Policy, Forthcoming
Vermont Law School Research Paper No. 10-16

STEPHEN DYCUS, Vermont Law School
Email: sdycus@vermontlaw.edu

U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.

The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.

Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.

“Special National Investigative Commissions: Essential Powers and Procedures (Some Lessons from the Pearl Harbor, Warren Commission, and 9/11 Commission Investigations)”

Penn State Legal Studies Research Paper No. 18-2009

LANCE COLE, The Pennsylvania State University Dickinson School of Law
Email: lxc24@psu.edu

This article analyzes the investigative powers and procedures of three extraordinarily high profile national investigative commissions: The Roberts Commission investigation of the Pearl Harbor Attack; the Warren Commission investigation of the John F. Kennedy assassination; and the 9/11 Commission investigation of the September 11, 2001 terrorist attacks. The article concludes with recommended practices and procedures for future high-profile national investigative commission.

“Beyond the Torture Memos: Perceptual Filters, Cultural Commitments and Partisan Identity”

Case Western Reserve Journal of International Law, Forthcoming
Case Legal Studies Research Paper No. 09-26

CASSANDRA BURKE ROBERTSON, Case Western Reserve University – School of Law
Email: cassandra.robertson@case.edu

Who should face accountability for the mistreatment of prisoners in the war on terror? Five years ago, the scope of prisoner abuse at Abu Ghraib was first revealed; this year, the Justice Department admitted that a single suspect was waterboarded 183 times. Some at the bottom of the political hierarchy have already been convicted for their participation in prisoner abuse. Those closer to the top of the political hierarchy also find their actions subject to scrutiny, as the Department of Justice’s Office of Professional Responsibility is carrying out an investigation into the professional conduct of the lawyers who authored the memos permitting “enhanced interrogation.”

This article argues that efforts to hold the memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers’ views of the situation in ways that appear unfathomable to outsiders. Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack political legitimacy. Onlookers will also view such efforts through their own perceptual frameworks and partisan commitments, and may therefore not agree that the memo authors’ conduct deserves to be punished. In particular, this article argues that between 2005 and 2009 there was a redefinition of cultural commitments associated with partisan identity. In 2004 there was still a broad anti-torture American identity, but that identity became fragmented by 2008, with support for torture breaking along partisan lines. In time, cultural commitments may again shift to allow a united American identity that condemns torture. Until that happens, however, it is likely that accountability efforts will further entrench partisan animosity.

“Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic”

Williamette Law Review, Vol. 45, p. 659, 2009

JERRY LOUIS MASHAW, Yale Law School
Email: jerry.mashaw@yale.edu

In Association of Data Processing Service Organizations, Inc. v. Camp, Mr. Justice Douglas famously remarked, ‘Generalizations about standing to sue are largely worthless as such.’ My sense is that Justice Douglas’ skepticism about generalizations applies with even greater force when the question is the extent of the President’s power under the U.S. Constitution to direct other officers concerning the execution or implementation of federal law. But, one generalization might be hazarded: Almost anyone who addresses the topic argues from historical practice, not merely from the text of the Constitution or from judicial precedent.

The silence, vagueness or ambiguity of the constitutional text on most matters of operational consequence, and the paucity of judicial pronouncements, means that the issues of presidential directive power are addressed largely in Congress and within the Executive Branch. In these venues of lawmaking and implementation, grappling with issues of presidential authority and congressional power are a part of the ordinary routines of government.

However sensible our reliance on practice for guidance, we should pause to consider just how deeply problematic that reliance might be. The problems occur at two levels. First, what is the normative claim of practice as evidence of what the law is or should be. Practice, repeated prior actions, or, perhaps, particularly salient events, are just facts. What gives them the power to bind us even presumptively. Second, assuming the normative force of practice, how is it to be interpreted? If we recognize a practice as ours and as having a claim on the legal imagination, how are we to give it meaning. By seeking the meaning these actions had for the actors. By close attention to the contexts in which they occurred. In their interpretation by contemporaneous or later commentators.

I do not want to dwell on the deep questions involved in what gives practice normative force. I will focus instead on the second difficulty, the difficulty of understanding exactly what the normative claim or reach of a past practice might be. For, the practice of American government has proceeded through the multiple actions and claims of executive and congressional officials in multifarious contexts and over a significant period. It is revealed both by what people did and what they said. And its understanding is illuminated by the background presumptions of the legal literature of the times as well as contemporaneous public reaction.

In the end I want to argue that recognition of the difficulty of deriving constitutional meaning from governmental practice contains its own normative implications. The very opaqueness of the normative claims of the past demands a particular form of responsibility from lawyers operating in the present. When combined with the knowledge that most issues of executive power will themselves be decided by practice, not by judicial opinions, we who struggle to discern the meaning of past practice have a special ethical duty not to overstate our positions or to ignore contrary evidence. We must recognize that our institutional arrangements have always been more experimental and various than can be captured by a single narrative.