RIGHTS IN THE BALANCE: FREE PRESS, FAIR TRIAL, AND NEBRASKA PRESS ASSOCIATION v. STUART

by Mark R. Scherer. Lubbock, Texas: Texas Tech University Press, 2008. 256pp. $40.00. ISBN: 9780896726260.

Reviewed by Michael Paris, Political Science Department, College of Staten Island (CUNY). Email: michaelpari [at] gmail.com.

pp.854-858

In RIGHTS IN THE BALANCE, Mark Scherer tells the story of a landmark Supreme Court case, and he tells it well. NEBRASKA PRESS ASSOCIATION v. STUART, which reached the Court in 1976, involved the age-old conflict between freedom of the press and a defendant’s right to a fair trial before an impartial jury. The Court’s unanimous holding eliminated one weapon in the trial judge’s arsenal for dealing with the problem of pre-trial publicity: the blunderbuss gag order directed to the press barring the publication of certain categories of information prior to jury selection.

Many readers of these electronic pages will be familiar with the outline of the story from Fred Friendly’s famous account of “a crime and its aftershock” (reprinted in Friendly and Elliott 1984, pp.145-158). In his painstakingly researched and competently written volume, Scherer fills in all the details. We meet and follow the relevant actors – the disturbed perpetrator of a gruesome, “In-Cold-Blood” style massacre and his six victims, the law enforcement officials, prosecutors, defense attorneys, and trial judges who had to respond quickly to the horrific crime under great duress, the journalists who converged on the remote prairie village where the crime took place, determined to dig out the facts, the media executives (and their lawyers) who mobilized legal appeals to challenge what they saw as blatantly unconstitutional censorship, and the appellate justices, both state and federal, to whom it fell to rule on the conflict between a free press and a fair trial.

The story begins in 1975 in Sutherland, Nebraska (population 840). Charles Erwin Simants, then twenty-nine years old, lived in the basement of his sister’s house. On an October night, he entered his neighbor’s home with his brother-in-law’s .22 caliber rifle in hand, determined, apparently, to sexually assault ten-year old Florence Kellie, who was momentarily alone. When the girl resisted his attack, Simants shot and killed her. Simants then proceeded to slaughter five other Kellie family members, one-by-one, as they returned home. He also sexually assaulted at least two of his female victims, both before and after their deaths.

After the killings, Simants went back to his sister’s house, placed the weapon where he had found it, confessed the crime to his thirteen year-old nephew (“I just killed the Kellies”), telephoned his parents and confessed the crime to them as well, and left a hand-written note (“I am sorry to all. It is the best way out. Do not crie.”). Simants’ father was the first to arrive at the Kellie home, and it was he who notified the authorities. After Simants was apprehended at the [*855] crime scene the next morning, he gave the police a detailed confession.

Over the next few days, print and broadcast media accounts contained many statements by Simants’ family members and law enforcement officials linking Simants to the killings, including information about his admissions of guilt.

Scherer shows us that the lawyers and trial judges immediately began to worry about the problem of impaneling an impartial jury. They did so, clearly, in the difficult context of a wildly sensational crime in a small, rural community. But they also did so in a particular legal context. That context, Scherer notes, extended backwards to Chief Justice Marshall’s exposition on publicity and juror impartiality during the treason trial of Aaron Burr. However, it took on a particular coloration during the television age. The 1960s witnessed the bench and bar’s growing concern about adverse (and sometimes false and prejudicial) pre-trial publicity and the right to a fair trial. In several high profile cases, including IRVIN v. DOWD (1961) and SHEPPARD v. MAXWELL (1966), the U.S. Supreme Court reversed convictions obtained in the tainted atmosphere of media feeding frenzies. In SHEPPARD in particular, the Court berated the trial judge for failing to control sensational press attention and to otherwise orchestrate a fair trial. In response, legal and media elites across the country collaborated on voluntary codes about disclosures and pre-trial publicity. Nebraska’s version (the Nebraska “press-bar guidelines”) emerged in 1970. Among other things, the press-bar guidelines specified that a defendant’s confessions or admissions of guilt were not appropriate for reporting (see also Abramson 1994, Chapter 2).

Nebraska criminal procedure provided for a preliminary hearing in one court before one judge and for trial in another court before another judge. When prosecutors and defense attorneys joined in a motion to ban press reporting of the preliminary hearing, the hearing judge responded favorably. The one-day hearing was open to the public (Nebraska statutes precluded a closed hearing), but when it ended all persons present were given a copy of what purported to be a judicial order not to “reveal for public dissemination” any of the testimony or evidence they had witnessed (p.48). The hearing judge also incorporated the voluntary press-bar guidelines into his order.

To be sure, the hearing judge (Ronald Ruff, age 34) had a big problem. At the time, Nebraska law provided for a change of venue only to an adjacent county – no doubt a remnant of the days when jury justice was local justice – and such a change would make no difference here. And then there was SHEPPARD v. MAXWELL, which, on Ruff’s reading, seriously questioned the possibility of a fair trial. Still, as Scherer shows us, the gag order made little sense, for the cat was already out of the bag.

Over the next several months, Ruff’s gag order would be modified on three separate occasions: Once by the trial judge (Hugh Stuart, the named respondent in the U.S. Supreme Court), who basically re-wrote the same order using more precise language; once by Justice Harry Blackmun, who, in his [*856] capacity as the presiding judge for the 8th Circuit, entertained the media’s application for an emergency stay; and, finally, by the Nebraska Supreme Court, but only after full briefing and oral arguments. Both Blackmun and the state high court ruled that the trial judge had erred in incorporating the press-bar guidelines into his order. However, the state high court’s December 1975 opinion left in place a ban on the publication of “confessions made by Simants to law enforcement officials,” confessions or “admissions against interest” to any other third party, and “other information strongly implicative of the accused as the perpetrator of the slayings” (p.89).

Remarkably, through it all, journalists and media companies obeyed the gag orders, even as they vigorously and creatively pursued their state and federal appeals. As Friendly put it, and as Scherer reiterates, these particular media elites “did not believe in civil disobedience.” The Nebraska Press Association and its Washington allies (including well-connected Supreme Court advocates E. Barrett Prettyman and Floyd Abrams) were of course dissatisfied with the outcome in the Nebraska courts. For them, the remaining gag order was a prior restraint completely unsupported by facts and arguments brought out in court. Moreover, and centrally, the gag order violated “the principle that the press has an unrestricted right to publish information gleaned from a public hearing in open court or material contained in public documents” (p.89, emphasis in Scherer’s text).

The U.S. Supreme Court denied the media organizations’ application for a stay, but granted cert. Thus, the gag order remained in effect until the start of Simants’ trial in January 1976. By the time the Court handed down its decision in June, Simants, whose only defense was, plausibly enough, insanity, had been convicted and sentenced to die in the electric chair. In 1978, at the eleventh hour, the Nebraska Supreme Court ended up reversing Simants’ conviction and ordering a new trial. It turned out that the local sheriff, a key witness in the case, had visited with jurors at length while they were sequestered at the Howard Johnson’s Motel.

In three chapters (Chapters 5-7), Scherer follows the gag order appeal through the Supreme Court’s process, from the granting of cert., to briefing and oral arguments, to what is known about the Court’s decision-making in the case, and, finally, to readings of the justices’ various opinions. The case was not a close one. All nine justices agreed that the gag order was unconstitutional. However, the Court fractured on the question of how broadly or narrowly to cast the reasoning. No one opinion commanded the Court. Chief Justice Burger’s plurality opinion, joined by Justices Rehnquist and Blackmun, hewed most closely to the particular facts. Burger left open the possibility that the presumption against prior restraints could be overcome on a proper showing. Justice Brennan’s concurring opinion, joined by Justices Marshall and Stewart, advocated an absolute ban on pretrial gag orders directed to the press. Justices White, Powell, and Stevens each authored separate concurring opinions that expressed sympathy for Brennan’s view, but in the end pulled up just short of “never.” [*857]

Early in the book, Scherer tells us that his narrative will be guided not only by a conventional focus on the legal process, but also by “the human stories” that infuse it and give it life (p.7). Scherer, a lawyer turned historian, certainly keeps his eyes trained on the case and the people involved in it. Some readers will no doubt feel that they are getting more detail than they want or need. To take just one of many possible examples: Does it really matter that the trial judge who will have to rule on a motion for a gag order over a weekend will also have to attend to his daughter’s wedding? Scherer’s account also includes many mildly annoying digressions that consist of textbook-like treatments of things like the Court’s cert. process and biographical sketches of all of the justices. Still, on the whole, I think this is a very good book that clearly succeeds on its own terms. The thick narrative allows us to situate ourselves with various actors and thereby to gain a richer understanding of an important case. The book also does a very good job of incorporating the content and quality of media reporting in the case (the press reporting on the story of itself being muzzled).

Given that the motive for the gag order was the desire to impanel an impartial jury, I would have liked to have heard more about the jury selection processes in Simants’ criminal trials. Scherer mentions jury selection – for example, in the first trial, the judge seated four jurors who admitted that they had already heard much about Simants, but who insisted they could keep an open mind – but he does not go into much detail. Given his diligence elsewhere, it is likely that the historical record was a bit sketchy on this front.

I very much enjoyed reading “the human stories” and their attendant ironies. We find a young, ambitious DA who is so worried about pre-trial publicity that he seeks a gag order, and yet at a preliminary hearing he puts on a full day of testimony (with 9 witnesses), when probably twenty minutes of testimony would have sufficed. We witness a trial judge flouting elementary notions of jurisdiction and judicial authority by allowing media organizations to “intervene” in a criminal case. We see judges and justices holding fast to a gag order even after the dreaded disclosures are common knowledge in the community. We see state appellate judges who, miffed at the news organizations for running to the federal courts, take their own sweet time to decide the case before them. Human stories indeed.

As should be clear by now, Scherer is quite content to leave it to the reader to consider the possible broader themes and implications of his account. One theme that kept me moving through the details was the clash of local law (and norms and folkways) with alternative formal-legal norms emanating from “higher,” more distant places. As should be clear by now, the law enforcement officers, lawyers, judges, and jurors in this isolated rural setting certainly had customary ways of thinking and acting within local legal institutions.

The most telling example of this clash between what was old and local and what was new and national was the outmoded change of venue statute and its relationship to changing notions of jury justice and juror impartiality. In 1978, probably as a direct consequence of Simants’ case, the Nebraska state [*858] legislature amended the change of venue statute to allow trials to be moved to any county in the state. The new statute may have been a matter of life and death for Charles Erwin Simants. His second trial, which was largely a replay of his first, was moved to Lincoln, Nebraska. The jury found Simants not guilty by reason of insanity. Simants was then committed to the maximum security unit at the Lincoln Regional Center, where he remains to this day (p.182).

REFERENCES:
Abramson, Jeffrey. 1994. WE THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY. New York, NY: Basic Books. [Reissued, Harvard University Press, 2000].

Friendly, Fred W., and Martha J.H. Elliott. 1984. THE CONSTITUTION: THAT DELICATE BALANCE. New York, NY: Random House.

CASE REFERENCES:
BURR v. UNITED STATES, 25 Fed. Cas. 49 (1807).

IRVIN v. DOWD, 361 U.S. 717 (1961).

NEBRASKA PRESS ASSOCIATION v. STUART, 427 U.S. 539 (1976).

SHEPPARD v. MAXWELL, 384 U.S. 333 (1966).

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© Copyright 2008 by the author, Michael Paris.

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RETAKING RATIONALITY: HOW COST-BENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH

by Richard L. Revesz and Michael A. Livermore. New York: Oxford University Press, 2008. 262pp. Cloth. $34.95/£18.99. ISBN: 9780195368574.

Reviewed by Thomas W. Church, Department of Political Science, University at Albany, State University of New York. Email: TChurch [at] albany.edu.

pp.848-853

Richard Revesz, Dean of the NYU Law School, and Michael Livermore, a recent graduate of the same school, have written a book aimed at convincing environmentalists and others of a “proregulatory sentiment” that cost-benefit analysis (CBA) is not their enemy but a potential friend, that they “need not lose their souls in order to embrace cost-benefit analysis. They only need to be reminded that reason is often on their side as well” (p.19).

The book is thus an upbeat appraisal of the promise of CBA for those concerned with protecting the environment and public health:

This book argues that cost-benefit analysis, properly conducted, can improve environmental and public health policy. Cost-benefit analysis – the translation of human lives and acres of forest into the language of dollars and cents – can seem harsh and impersonal. But such an approach is also necessary to improve the quality of decisions that regulators make. Saving the most lives, and best protecting the quality of our environment and our health – in short exercising our compassion most effectively – requires us to step back and use our best analytic tools. (p.3)

This theme is echoed in the book’s title, “Retaking Rationality.” The clear implication is that CBA is simply another term for reasoned thinking – “coolly calculating, rational, disinterested” (p.19) – and it must be recaptured from the antiregulatory groups that have improperly biased its practice over the past two decades. These biases in CBA methodology arose, according to the authors, because progressives chose to sit on the sidelines when important governmental determinations were made regarding how CBA was to be practiced in agency decision making. If the book’s title leaves any doubt about either the intended audience or the political message, it is dispelled early on with a call to arms more reminiscent of the Communist Manifesto than an academic treatise on an esoteric analytical technique:

Proregulatory groups must shake off their torpor. Their opposition to cost-benefit analysis, even if it was understandable at the outset, has become very counterproductive. Their position is now hindering their goals more than it is helping them. They must recognize that cost-benefit analysis can – with work – become a goad as well as a brake on government. As soon as they reach this realization, cost-benefit analysis will cease to be inherently antiregulatory and will become a tool that is exactly as good as we can make it (pp.44-45).

The irreverent analogy to a work that brings heartburn to most economists suggests my overall predisposition [*849] toward CBA, which I should probably state at the outset. I am a political scientist. Though I have had some training in both economics and law, I do not share either discipline’s distaste for, and distrust of politics, nor their attraction to decision-making processes in government that attempt to eliminate administrative judgment and discretion in favor of purportedly “objective” or “rational” methods that – at least in practice – are frequently neither. This is not the place for an extended critique of cost-benefit analysis, either in theory or in practice. (Those looking for a spirited critique can find it in Ackerman and Heinzerling 2004). Indeed, I am something of an agnostic on the subject, and suspect that some version of CBA has a useful place among the tools used by policy analysts and administrators to evaluate alternate approaches to policy issues. However, I believe that the largely unqualified embrace by the authors of this book of “properly conducted” CBA as the primary source of guidance for would-be regulators, and their implicit identification of the narrow economic rationality embodied in CBA with “reasoned thinking,” may prove to be bad advice for their intended “proregulatory” audience and for the future of effective health, safety, and environmental regulation.

The book is divided into three sections. The first, “Decisions Are Made by Those Who Show Up,” sets out the errors made by environmentalists and others supportive of governmental regulation when they failed to participate in decisions concerning the mechanics of how cost-benefit analyses would be conducted in government. This strategic mistake left the field to opponents of regulation, and led to a number of antiregulatory biases introduced into the way CBA is now conducted. The final section sets out in broad outline the authors’ program for “Instituting Regulatory Rationality” through better use of CBA.

While the first and last sections outline the authors’ arguments for the embrace of CBA by groups that have tended to shun the technique in the past, the analytical meat of RETAKING RATIONALITY is found in the central section of the book, which discusses eight purported errors or “fallacies” in the way CBA is either currently used in regulatory decision making, or which seem to be on the horizon. These errors “amount to a virtual Berlin Wall blocking good regulations” (p.145). While these criticisms of the conduct of CBA are not new, the discussion is cogent and informative. It is also novel in that it comes from such obvious partisans of the technique.

Three of the fallacies speak to what might be termed technical issues regarding the conduct of CBA; they raise empirical questions that presumably could be addressed by correcting analytical errors or by further research into empirical assumptions:

• Ancillary positive benefits from regulation are seldom taken into consideration in CBA, while predicted negative consequences of regulation always find their way into the analysis.

• The “health-wealth tradeoff,” based on the assumption that the costs of regulation decrease overall societal wealth and thereby diminish human health, is improperly used to decrease the expected benefits of regulation; the [*850] authors argue that this analysis is empirically incorrect because it confuses the correlation of wealth and health with causality.

• Costs of regulation are frequently overstated, not only because it is in the interest of the regulated parties to make predicted costs as high as possible, but also because CBA infrequently considers the potential for innovation.

The remaining issues cannot be addressed empirically, because they pose fundamental moral, ethical, and political choices that lie at the heart of CBA, and which are also illustrative – at least in my view – of the underlying subjectivity and indeterminacy of the entire enterprise.

• CBA “discounts” future benefits, even the benefits accrued by saving human lives in the future, in the same way economists discount the value of an income stream in the future; the assumption is that future benefits are less valuable than those obtained immediately, and are therefore “worth” less. While this piece of economic orthodoxy makes sense when applied to purely financial decisions, it operates more problematically when applied to long-term environmental problems – particularly those that may not have major impact on ourselves, but on future generations. The decision to devalue benefits and harms to future generations in the service of reducing costs to the present generation obviously involves ethical and political considerations, and a strong dose of subjectivity in setting a discount rate, rather than empirical or technical issues.

• Since CBA requires benefits to be valued in monetary terms, even human life must have a price tag. Revesz and Livermore consider two aspects of this process, currently gaining sway among CBA practitioners, to be “fallacies” in need of correction. These involve placing differential values on human lives, based on either age or on the “quality of life.” In the former case, older peoples’ lives are valued at a lower price than younger people, based on the predictable fact that they have fewer years left to live. In the latter case, an increasingly popular CBA technique values lives differently based on quality of life being lived. For example, an individual who loses use of his limbs, or suffers from serious lung disease, or painful arthritis is said to have a lower quality of life, and therefore to benefit less from life than an individual in good health. In both cases, the diminished value of the lives being saved lowers the monetised benefits of a proposed regulatory action and thus justifies expenditure of fewer societal resources. The moral and political implications involved in deciding whether, and the inherent subjectivity in determining how, to make such choices are obvious.

• CBA cannot deal with benefits or “intrinsic values” that have no ascertainable market price. While conceptually and statistically problematic, techniques exist for determining an extrapolated price for some goods that have no direct market price (such as human lives, or risks to human lives) if there are prices for related goods in the market (such as the increment workers are paid for employment in highly risky jobs, or what consumers are willing to pay for safer products). Based on such studies, [*851] for example, EPA has set the monetary value of a human life (or “statistical life”) at $6.3 million (p.70). But no relevant market exists for “natural resource values” such as the preservation of wilderness areas or endangered species. How does one monetise the benefit of maintaining a pristine Alaska National Wildlife Refuge, or protecting the polar bear from extinction? The usual method is to conduct what are termed “stated preference” or “contingent valuation” surveys in which individuals are asked how much they would be willing to pay for preserving a species or wilderness area they may never see. These surveys are accompanied by a host of conceptual and technical problems, leaving some analysts (typically those in the “antiregulation” camp) to argue that natural resource values that cannot be extrapolated from the market should simply be ignored. Revesz and Livermore regard this as another “fallacy,” though their criticism seems based less on the strength of existing valuation methodologies than on the fact that in the absence of such methods, preservation of many intrinsic natural values will not show up on the benefits side of CBA at all.

There is a final problem with CBA that the authors discuss, but suggest that no solution exists within the confines of the analysis: the problem of fairness which, in the environmental arena, is subsumed in the concern with “environmental justice” or, more pungently, “environmental racism.” All CBA calculations of benefits are attempts to approximate the price that would emerge in a free market; the best approximation of such a value is typically “willingness to pay” or WTP. The equity problem here is that poorer people are necessarily less willing to pay for environmental or public health benefits because their incomes are consumed by food, shelter, and other essentials; they are less willing because they are less able to pay. Basing environmental and public health policy on WTP, then, would necessarily concentrate environmental and health risks and damages on those segments of the population least able to pay for their amelioration. Of course, this is typically the result of the play of the political and economic system, but when considering public policy from the position of a concerned scholar, it is surely problematic to label this arguably unjust and unfair allocation of harms to be the result of “coolly calculating, rational, disinterested” reason.

Revesz and Livermore’s solution to this problem is to undertake “distributional analysis:”

Distributional analysis is not an easy undertaking, but it is a necessary corollary to cost-benefit analysis. Cost-benefit analysis, on its own terms, excludes concern for the distribution of the benefits and burdens of regulations. This omission is acceptable only if a separate effort is undertaken to account for these effects. (p.182)

So, we learn in the final pages that CBA is unacceptable without distributional analysis. Of course, it goes without saying that a determination of who should benefit from, and who should pay for a governmental policy is the very definition of a political decision. Yet the authors devote only two paragraphs to this issue and do not indicate what a distributional analysis might look like, how its results would be integrated into [*852] the results of CBA, what weight it should be given in regulatory decisions.

While the authors make a cursory nod (on the last page of the book) to the fact that cost-benefit analysis is “not a panacea” (p.190), this caveat is drowned in their unbridled enthusiasm for a new, purified version of the tool as the sine qua non of rational regulatory decision making. There is no serious discussion of how CBA could accommodate concerns over equity and fairness, or how it might fit with other modes of analysis, other less mechanistic – more “subjective” or even “political” – decision-making processes.

The authors’ overselling the promise of CBA, and their explicit identification of the technique with broader notions of administrative rationality, is especially troubling because legislators and the courts may buy into the view that cost-benefit analysis defines reasonable decision making in a regulatory context, that if an agency does not follow the dictates of economic rationality embodied in CBA, it is acting arbitrarily. Arbitrary administrative behavior, of course, is subject to reversal by judges, especially federal judges, who increasingly distrust the exercise of discretion by bureaucratic agencies and are ever more ready to substitute their own notions of reasonableness for those of agency officials. It is not clear that regulatory policy making would be improved if administrative decisions were routinely second guessed by federal judges attempting to determine whether proposed regulations square with their understanding of the dictates of rational choice economics.

Cost-benefit analysis as depicted by the authors of RETAKING RATIONALITY promises to remove (or at least substantially reduce) agency discretion, always subject to influence by agency clientele or other political pressure, and take us to a landscape of impartial analysis and rational, disinterested decision making: “By providing a more accurate assessment of the real costs and benefits of a decision, formalized cost-benefit analysis reveals the distortions of politics – the backroom deals and special interest politics – for what they are” (p.12). As such, CBA, at least as viewed by those who fail to appreciate the transcendently political and moral assumptions underlying its application, can be seen as providing a clear, apolitical metric by which to evaluate regulatory decisions. But, as we have seen, critical assumptions in the very guts of CBA – such as differential valuation of human lives, discounting the interests of future generations, or inability to consider the societal distribution of the benefits and costs of regulation – are highly charged moral and political choices that will frequently have a profound impact on the calculation of costs and benefits that emerge from the allegedly disinterested analysis. As a result, as even its most enthusiastic supporters admit, the results of CBA are frequently “indeterminate:” reasonable and conscientious analysts may produce widely divergent assessments of the costs and benefits of a proposed governmental action. For example, Cass Sunstein – a more measured supporter of CBA than the authors of RETAKING RATIONALITY – found that defensible estimates of the societal benefits of EPA’s proposed regulation of arsenic in drinking water ranged from $13 million – well below [*853] regulatory cost – to a figure more than 260 times greater – $3.4 billion – substantially above the cost of the regulation (Sunstein 2002, p.177).

Judge Richard Posner, a vocal proponent of CBA, states the following in the “Advanced Praise” blurb printed on the back cover of RETAKING RATIONALITY: “It is true that in noncommercial settings, cost-benefit analysis often cannot yield definitive conclusions without the analyst’s adopting assumptions that may be politically charged. But the charge can be, as the authors show, liberal rather than conservative.” In this context, irrespective of one’s political leanings, it is difficult to accept Revesz and Livermore’s depiction of cost-benefit analysis as “coolly calculating, rational, disinterested.” And it is similarly unclear that committed environmentalists should enthusiastically embrace a technique that promises the removal of political judgment from agency decision making while reinserting it under cover of seemingly technical issues such as “discounting” and “quality of life” calculations.

The authors readily admit that CBA has not in the past been a friend of those supportive of governmental regulation to promote human health and the environment. In light of the underlying subjectivity of the enterprise, the technical problems inherent in the calculation of public benefits, CBA’s frequent indeterminacy and intrinsic inability to consider basic notions of fairness, it is not clear that environmentalists and other supporters of regulation would be well served by casting their lot with CBA, even if it were biased in a proregulation direction as the authors propose. In my judgment, the critical issue for those concerned with effective regulatory policy should be how to integrate the findings of cost-benefit analysis and other quantitative analytical techniques such as risk analysis, into a more inclusive decision-making framework that does not substitute form for substance, and which insures that the value choices made by administrators are explicit and defensible in broader terms than those embodied in economic models.

REFERENCES:
Ackerman, Frank and Lisa Heinzerling. 2004. PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING. New York: The New Press.

Sunstein, Cass R. 2002. RISK & REASON: SAFETY, LAW, AND THE ENVIRONMENT. Cambridge: Cambridge University Press.

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© Copyright 2008 by the author, Thomas W. Church.

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CORRUPTION AND THE SECRET OF LAW: A LEGAL ANTHROPOLOGICAL PERSPECTIVE

by Monique Nuijten and Gerhard Anders (eds). Burlington, VT: Ashgate, 2007. 234pp. Hardback. $99.95/£55.00. ISBN: 9780754671107.

Reviewed by Frederic Charles Schaffer, Department of Political Science, University of Massachusetts Amherst. Email: schaffer [at] mit.edu.

pp.845-847

We tend to view law and corruption as opposites. Where the law prevails, we typically hold that corruption has been held at bay. Where corruption prevails, we typically believe that the law has been transgressed. The contributors to this edited volume seek to challenge this dichotomous view. They aim to show the “hidden connections” (p.xi) that link law and corruption. To do so, they adopt the methods of anthropology, arguing that the tools of this discipline can be used to deconstruct simplistic binary oppositions and build up in their place more complex pictures of social reality. Except for the editors’ introduction and a methodological chapter by Giorgio Blundo, the book consists of (mostly) ethnographic case studies from China, Italy, Mexico, Burundi, Indonesia, pre-war Japan, and the US borderland with Mexico.

What are the hidden connections that join law and corruption? As Gerhard Anders and Monique Nuijten explain in their introduction, the law and its transgression cannot exist without each other insofar as one defines the other. That law makes its own transgression possible is the “secret of law” to which the book title refers (p.12). Unfortunately, this thesis is developed only abstractly in the introduction, and its implications are not fleshed out well in the remainder of the volume.

Other connections between law and corruption, thankfully, are explored more concretely. The most interesting of these play on the complexity of the word corruption itself. “Corruption” is a term that English speakers use to condemn from two distinct vantage points. To call an act “corrupt” is to condemn it as the violation of (certain kinds of) standards that are defined either by law or morality. Thus corruption can refer to either the transgression of law or moral depravity. Several contributors to this volume direct our attention to this duality. Illegalities, they remind us, may be viewed as moral by participants or member of the community. Thus the same act, practice, or institution can be both corrupt and not corrupt depending on the normative standard applied. The rich analytic possibilities opened up by this insight are well exploited in the book. Andrew MacNaughton and Kam Bill Wong, for instance, examine engagingly five illustrative civil service corruption cases heard by the Daishinin, the highest criminal appeals court in pre-War Japan. In two of these cases, the civil servants found guilty of corruption argued that they were merely acting in accordance with the Japanese traditional practice of gift giving, arguments which the court ultimately rejected. In another strong chapter, perhaps the most thought-provoking in the volume, Alan Smart and Carolyn Hsu examine the practice of guanxi (gift exchange, but [*846] literally, “relationship,” “network,” or “connection”) in China and tease out its complicated relationship with morality and corruption. Depending on how particular gift exchanges are performed, ordinary Chinese citizens can see them as either reasonable and legitimate or abusive and corrupt.

Given that laws vary from polity to polity, and that norms of morality vary from culture to culture, the contributors to this volume shy away from offering any “universal” or “cross-cultural” definition of corruption (p.7). Consequently, the burden is on the author(s) of each chapter to specify the contextual meaning of corruption in the particular country under investigation. This task is met with mixed success. Among the most problematic chapters in this regard is Josiah Heyman and Howard Campbell’s examination of corruption in various US government agencies operating at the Mexico border. In an otherwise fine chapter, the authors neglect to explain what they mean by corruption, and include among a catalog of corrupt acts the killing and sexual assault of immigrants (pp.204, 208). Without additional explanation about the motives for and context of such acts, it is difficult to see what makes them instances of corruption as opposed to some other form of misconduct. Smart and Hsu, in contrast, handle the definitional challenge with far greater care. They expertly explain the meaning of the Chinese rough equivalent of corruption - fubai and tanwu - and draw for the reader the fine moral line that distinguishes “corrupt” acts that are fubai or tanwu from “reasonable” ones that are guanxi.

On the whole, the ethnographic approach of the volume is well suited to the task at hand, and the case studies provide the kind of thickly textured accounts so often missing in political science. Deserving special mention in this regard is Pieter de Vries’ vivid portrait of Jesús Lopez, a gregariously corrupt Mexican cacique. There are, however, some methodological mis-steps in the book. Because corruption is difficult to study, some authors examine what people say about corruption rather than corruption itself. For instance Simon Turner, in his study of Burundi, focuses uniquely on narratives of corruption, and finds that through them people “attemp[t] to grasp their own misfortune” and “express fears that things are not what they appear to be” (pp.125-126). But because he never moves beyond an analysis of words, Simon cannot say for sure that the stories he heard were merely reflections of fear and concern. Maybe his informants were also keen observers of Burundian politics. In this context it is striking that some of the political practices described by Turner’s informants – buying off opponents in particular – correspond closely to the maneuvering described by Rosberg and Jackson (1982, at 38-58) in their classic study of uninstitutionalized politics in Africa.

Finally, a word on organization. There is, unfortunately, little thematic division of labor between the substantive country-based chapters. Each is oriented to diverse sets of questions, sometimes overlapping, sometimes not. And while Anders and Nuijten’s introduction provides an excellent overview of the anthropological literature on corruption, it fails to lay out a roadmap showing how the various chapters of this volume [*847] fit together. One chapter in particular seems disconnected from the rest. Livia Holden and Giovanni Tortora’s account of the twists and turns of the defense mounted by Tortora (an Italian defense lawyer) of a man accused of mob-land murder had, as far as I could tell, little to do with corruption, and is thus a curious addition to this book. There are, too, important themes developed in individual chapters that should have been brought together and explored further somewhere in the volume. Both Heinzpeter Znoj’s incisive chapter on bureaucratic corruption in Indonesia and Heyman and Campbell’s study of the US borderland advance compelling hypotheses, respectively, about the institutional and sociological causes of corruption. But the question of causation, regrettably, is not taken up seriously by the editors in their introduction, and the volume lacks a concluding chapter.

REFERENCES:
Rosberg, Carl G., and Robert H. Jackson. 1982. PERSONAL RULE IN BLACK AFRICA: PRINCE, AUTOCRAT, PROPHET, TYRANT. Berkeley: University of California Press.

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© Copyright 2008 by the author, Frederic Charles Schaffer.

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ETHICS AND CRIMINAL JUSTICE: AN INTRODUCTION

by John Kleinig. New York, NY: Cambridge University Press, 2008. 294 pp. Hardback. $90.00/£45.00. ISBN: 9780521864206. Paperback. $29.99/£15.99. ISBN: 9780521682831. eBook format. $24.00. ISBN: 9780511380143.

Reviewed by Julio Rios-Figueroa, División de Estudios Políticos, CIDE, Carretera Mexico-Toluca. Email: julio.rios [at] cide.edu.

pp.842-844

Should police violate the law in order to trap those who would otherwise escape its reach? Should prosecutors willfully withhold exculpatory information that would bear on a dangerous defendant’s guilt? Should judges and juries consider valid evidence obtained by setting up a situation that “invites” the commission of a crime and then using the ensuing criminal conduct as grounds for arresting the individuals who fall into the trap? In other words, is it right to do wrong, and under what circumstances? On what grounds can these actions be justified? John Kleinig’s interesting book discusses these and other ethical dilemmas that are prompted by the criminal justice system in the United States.

The first three chapters set up the theoretical framework that enables readers dealing with the broader ethical questions. The rest of the book is organized so that the chapters nicely mirror the sequence of a typical criminal case, analyzing in order of appearance the actors and processes of the criminal justice system: the police, the prosecutor, the defense lawyer, the judge, the jury, and prison officers. The ethical dilemmas that each one of these actors faces at different stages of the criminal process are presented by Kleinig in an attractive way that will likely stimulate rich discussions in classrooms.

The ethical discussions are set within the theoretical framework of liberal democracy, drawn mostly from work by theorists such as John Locke and John Stuart Mill. In setting up this framework, Kleinig avoids the theoretical extremes of both a Kantian perspective in which the means never justify the ends, as well as a completely consequentialist approach in which ends always justify means. Instead, he suggests keeping the discussion in a middle ground through balancing tests of ends and means (Chapter 3). The institutional actors of the criminal justice system are granted a certain degree of discretion required for performing their jobs, and Kleinig’s basic strategy is to consider the ethical boundaries of such discretion. To delineate this “bounded authority,” Kleinig proposes four steps in the balancing of means and ends: to take into account the importance of the ends; the proportionality of ends to means; the likelihood of the means actually securing the ends that they seek; and the possible downsides of using some means to ends rather than others (p.76).

Closely related to the ends/means tests, the theme of the professionalism of policepersons, prosecutors, attorneys, judges, and prison guards runs through [*843] the book. The author rightly emphasizes that, even though professionalization contributes to professionalism, the latter encompasses more than the former because it implies moral considerations in the performance of one’s job. In particular, professionalism in Kleinig’s view implies that one answer to who should set the boundaries of authority is “one self” (see, e.g., p.173). Importantly, this does not mean that the author is oblivious to institutional incentives that should be set to promote the right behaviors and to the circumstances in which particular cases take place. From a political science point of view, I found this combination of institutional and contextual analysis with the discussion of ethical dilemmas faced by actors in the criminal justice system – in particular policemen and prosecutors – to be the most engaging aspect of the book.

For instance, while we generally consider deception normally unacceptable, the police commonly use deceptive tactics in their criminal investigations – such as undercover policepersons, hidden surveillance devices, or unmarked police cars. Thus, the institutional design should set the right incentives for prosecutors and judges to ensure that in using those tactics the police do not overstepped the boundaries of their authority. Institutional links between police, prosecutors, and judges vary cross nationally, and Kleinig’s book provides a useful framework to evaluate the ethical dilemmas that are more likely to emerge in some criminal justice systems than in others. In civil law systems, where the judge plays a crucial role in the investigative phase, serving as an effective check on the abuse of deceptive tactics will be more difficult. Interestingly, the circumstances of each particular case also matter: judges allow greater police discretion in the use of deceptive tactics at the investigatory than at the trial phase. During trial, the use of testimonial deception is more damaging to social trust of courts and, as Kleinig notes, it also undermines the monitoring capacity of the court during the investigative phase (p.109).

While Kleinig acknowledges and discusses at length the strategies and dilemmas that police and prosecutors face, he does less so with judges who are also influenced and play with strategies that raise ethical concerns. For instance, vote trading in collegial courts – e.g., a judge voting contrary to her views in one case in order to get her colleague’s vote in another case – raise interesting ethical dilemmas that could be analyzed using the means/ends test proposed by the author. Of course, the role of the judge(s) in criminal cases tends to be stronger in systems other than the United States, and perhaps strongest in the civil law systems, but the practice merits an ethical evaluation. This can also occur with certain relations between judges and litigants in some cases, a topic briefly mentioned by Kleinig, which may cross the boundaries of professionalism – e.g., when powerful businessmen contact judges with whom they have personal relations pending the decision on a case that may affect the interests of the former.

In addition to more attention to judges, future editions of the book would benefit from more systematic comparisons between the Unites States criminal justice system and the other common law countries that are mentioned, the [*844] United Kingdom, Australia, and Canada. Furthermore, the inclusion of civil law countries would be helpful to appreciate a fuller range of angles of the ethical dilemmas faced by actors in criminal cases. As Kleinig briefly notes here and there, some of the dilemmas are more acute, or rather different, in transitional societies. For instance, Kleinig discusses the dilemma created by jury nullification in cases where police officers patently guilty of using excessive force are exonerated (p.181). This analysis can be enriched by looking at cases where police abuse takes place in contexts of profound social inequality, an overwhelming public support for “iron fist” actions, and different institutional relations between police, prosecutors, and judges (see Brinks 2008).

In sum, this book is an interesting and easy to read introduction to the ethical dilemmas prompted by the criminal justice system that is likely to generate vivid discussions in the classroom. The tension between security and liberty recently emphasized by the “war on terror,” as well as the security concerns that an increasing number of societies face around the world, make it also a timely contribution. In particular, the book can be an excellent complement in a course on judicial politics and judicial institutions that usually do not consider, or barely, ethical issues regarding the behavior of actors who populate the institutions of the justice system.

REFERENCES:
Brinks, Daniel. 2008. THE JUDICIAL RESPONSE TO KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW. New York: Cambridge University Press.

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© Copyright 2008 by the author, Julio Rios-Figueroa.

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MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS

by Vivienne H. Harpwood. New York: Routledge-Cavendish, 2007. 240pp. Cloth. $170.00. ISBN: 9780415428071. Paper. $53.95. ISBN: 9780415428095.

Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University, Canada. E-mail: 9car [at] queensu [dot] ca.

pp.838-841

Vivienne Harpwood’s MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS offers a thorough examination of the rising incidence of clinical negligence claims. Harpwood questions, in light of recent trends, whether there is in fact, a litigation crisis in healthcare. MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS attempts to “put the debate about the so-called compensation culture on a sounder statistical, and hence, epistemological basis” (p.xiii). At its heart, MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS argues that the current Governmental claims that are reluctant to acknowledge, or are skeptical of the existence of a compensation culture are “sadly, possibly deliberately, short of the mark in the healthcare context” (p.xiii). Harpwood is fair in her treatment of these questions, and often offers thorough support through both quantitative as well as qualitative analysis.

Harpwood’s introductory chapter presents the reader with a thorough understanding of the figures and trends surrounding clinical negligence claims. She then proceeds to examine the “myth” of the compensation culture and asks us who is to blame for the rise in incidents of malpractice, the role the media plays in such a culture, as well as the status doctors hold in contemporary UK culture. MEDICINE, MALPRACTICE, and MISAPPREHENSIONS ends with Harpwood’s attempt to “treat the affliction.” It is here she presents novel ideas and suggestions on the role of the courts, government intervention, as well as legal reform.

The first chapter, “Data, Accuracy, Compensation, and Error: What Should We Believe?” serves as an introduction to the statistical trends in clinical negligence claims. It examines the information available about the number of claims and errors that occur in healthcare. Harpwood proceeds by examining what these claims and errors cost the public, and ultimately, concludes that there is almost certainly what she refers to as “a culture of under-compensation” (p.xiv). This conclusion is not expressed without a fair amount of reluctance however. Harpwood navigates the reader through a maze of contradictory data and often stops to highlight briefly why she believes such discrepancies exist.

While this chapter serves as an excellent introduction to the complexities in understanding malpractice claims in the UK, it does have at least one shortcoming. MEDICINE, MALPRACTICE, AND MISAPPREHENSION is, by and large, [*839] written in a style that everyone can enjoy. It is clear, concise, and often speaks to the reader in a casual style, demystifying complex issues and figures. Harpwood’s first chapter however, focuses on quantitative analysis more than the rest of the book, and is perhaps overly thorough. She presents the reader with a tremendous amount of data, and I suspect, it will serve to overwhelm some. Tom Baker’s THE MEDICAL MALPRACTICE MYTH (2005) presents similar trends within the American context in a much more accessible style. What THE MEDICAL MALPRACTICE MYTH lacked in thoroughness, it made up through developing greater interest and lasting knowledge. I fear Harpwood has presented too much data to make a lasting impression in Chapter One, and as a result, could alienate some readers.

That said, providing too much data is hardly a complaint with which those engulfed in this debate would concern themselves. The more casual reader may gravitate more heavily towards Baker’s THE MEDICAL MALPRACTICE MYTH or perhaps William M. Sage and Rogan Kersh’s MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM (2006).

The second chapter provides the reader with possible causes of the increase in clinical negligence claims. It is here Harpwood examines such phenomena as the impact of legal advertising, the rise of medical consumerism, as well as the new psychology of the doctor-patient relationship. Perhaps the most interesting section of this chapter is the timeline Harpwood provides us, outlining key events since 1984. She then associates these events to the number of claims reported in each corresponding year.

Harpwood then moves on to examine the potential reality of a compensation culture in the UK. In the third chapter, Harpwood focuses on the gap between myth and reality within the perceived contemporary culture of compensation, ending with a harsh critique of the government and other organizations that may “have an interest in promoting the idea that too many people, even those who deserve to be compensated, are making claims” (p.104).

The fourth chapter examines the role and influence of the media in informing the UK public of developments and incidents in healthcare litigation. Here Harpwood assesses how medical stories are reported, as well as the slant the media gives to accounts of clinical negligence. She notes how many of the reported errors or claims concern high awards of money to ensure the headlines are attention grabbing. However, despite this claim, Harpwood does present a well-balanced critique of the media and dedicates a good portion of this chapter to many examples of responsible media reporting. Ultimately, Harpwood does not present the reader with a strong conclusion, but throughout the chapter discusses many criticisms of media coverage in the healthcare context. These criticisms include, but are not limited to, the views of healthcare professionals, politicians, and lawyers.

Next, Harpwood attempts to draw some conclusions regarding how doctors are conceptualized in popular culture. “Over-paid, Out of Control, and Under-Regulated” examines how doctors are [*840] often depicted as over-regulated, out of control, practicing under pressure, and acting defensively. Again, Harpwood presents a well-balanced examination of the facts so as to ensure she is not perpetuating the myths she is attempting to demystify. For example, even though doctors in the UK earn well above their European counterparts, British doctors are also expected to achieve goals and meet Government targets and standards in a manner that represents significant departure from the remainder of Europe.

The primary shortcoming of this chapter is the overly-brief treatment of defensive medicine. Harpwood cites literature supporting the view that doctors practice defensively (meaning, they carry out procedures and treatments that are not clinically necessary, but because these measures are likely to prevent a legal claim of negligence). While she acknowledges the distinction between defensive medicine and risk management, Harpwood fails to thoroughly examine difficulties with defensive medicine arguments, as well as the positive and negative aspects of the practice.

Sandeep Jauhar (2008) recently penned an article for the NEW YORK TIMES addressing, amongst other topics, the reluctance of insurance companies to support what was perceived to be unnecessary tests or medication. He argues that practicing medicine was more difficult as a result of insurers “handcuffing” a selected course of treatment. He claims that insurance companies sometimes have more power over a patient’s course of treatment than the patient’s own doctor.

Additionally, despite the fact that most doctors admit to practicing defensive medicine, a postal questionnaire conducted in 1995 by Nicholas Summerton (1995) finds numerous positive outcomes of defensive medical practice. Some of these positive outcomes are more detailed note taking and explanation of procedures to patients, development of audit in practice, and increased patient satisfaction. Surely these outcomes are not of similar weight as many of the negative ones, but I believe that nevertheless, they deserve attention.

Finally, the sixth chapter concludes with Harpwood’s recommendations to progress to a better understanding of many of the misapprehensions about error and negligence claims in healthcare. These suggestions include improving statistical evidence, changing the culture, and developing the concept of primary liability, to name a few. Many of these suggestions are supported through conceptualization in previous chapters, but nevertheless, I believe the reader would benefit from more attention to these suggestions. Many of the suggestions are presented clearly and concisely, but some are relatively unsupported.

As a whole, Harpwood’s contribution is a large one. MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS is a thorough examination of many of the nuances surrounding the contemporary culture of compensation in the UK. I suspect this monograph will be of primary interest to those working in healthcare litigation, it but would also benefit those interested in the politics of healthcare and bioethics. [*841]

REFERENCES:
Baker, Tom. 2005. THE MEDICAL MALPRACTICE MYTH. Chicago: The University of Chicago Press.

Jauhar, Sandeep. 2008. “Eyes Bloodshot, Doctors Vent Their Discontent.” July 18 2008 THE NEW YORK TIMES.

Sage, William M. and Rogan Kersh (eds.). 2006. MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM. New York: Cambridge University Press.

Summerton, Nicholas. 1995. “Positive and Negative Factors in Defensive Medicine: A Questionnaire Study of General Practitioners.” 310 BRITISH MEDICAL JOURNAL 27-29.

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© Copyright 2008 by the author, Christopher A. Riddle.

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ON HUMAN RIGHTS

by James Griffin. New York/Oxford: Oxford University Press, 2008. 360pp. Cloth. £25.00/$50.00. ISBN: 9780199238781.

Reviewed by Rory O’Connell, Senior Lecturer, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk.

pp.834-837

This books makes a useful contribution to the theory of human rights, and importantly makes links between philosophical theory and the law of human rights, whether this be in international law or at the constitutional level. It is written in an engaging, even forceful style, and is very carefully structured, and generally extremely clear. A certain basic familiarity with some terms in moral and political philosophy is presupposed (e.g. deontology, teleology).

The book is an exercise in moral philosophy, not specifically political philosophy, and certainly not human rights law. James Griffin regularly makes the point that there is a difference between the list of rights offered by a theory in moral philosophy, and the list of human rights found in law (p.191). Nor does he insist that there should be an exact match between the two: society may well have good reason to make something a legal right and even insert it in a human rights document. For instance, Griffin prefers the term “legal group rights” to human group rights, seeing no difficulty with society deciding to grant rights in law to groups, though believing group rights are not properly human rights (p.276). The moral philosophy of human rights remains relevant nevertheless to the practice of human rights law; in particular it becomes relevant when we need (or courts need) to decide on the content of rights (p.206; see also O’Connell 2005).

Griffin believes that the most philosophically defensible notion of human rights is one grounded in “personhood,” the status of a person as a normative agent, the possibility of “deliberating, assessing, choosing and acting to make what we see as a good life for ourselves” (p.32). Griffin distinguishes this approach to an account of human rights from one based on the language of human needs (p.88). This basic ground of personhood is supplemented by a second one, practicalities, where this refers not to particularly concrete exigencies, but to general information about human nature, society, and knowledge of the type of being humans are (p.38).

Griffin limits himself to these two grounds; in particular he rejects Dworkin’s notion that equality is a ground for human rights (pp.39-44). This is not because equality is unimportant; on the contrary, it is extremely important. One of the major themes in this book is that the concept of human rights does not subsume every other important category in moral theory: there are important issues of fairness, justice and equality that should not be reduced to questions of human rights (p.43). This point, that there is more to moral theory than human rights, seems right. However, I am not entirely [*835] convinced that equality does not deserve a more exalted place in Griffin’s analysis. If we look at international human rights texts, these tend to stress equality and non-discrimination, usually providing that all rights should be enjoyed without discrimination, and that people have a right to equality (e.g. Universal Declaration of Human Rights, 1948, Article 2 and Article 7; International Covenant on Civil and Political Rights, 1966, Article 2 and Article 26). Further Griffin agrees that equality is important to human rights and that certain forms of discrimination violate human rights (pp.42-43).

These two grounds of human rights (personhood and practicalities) are fleshed out in three higher order rights: autonomy, liberty and “minimum provision of resources and capabilities” (p.33). These three higher order rights are then used to specify more specific rights, which include many but not all of the rights that figure in international human rights texts. Most importantly these two grounds and three high order rights allow Griffin to address one of his major concerns: the danger in the over-inflation of rights. Autonomy and liberty do not mean being allowed to follow one’s whim (e.g. driving the wrong way down a street because it is more convenient, or failing to wear academic dress when required to do so) or engage in any practice merely because it is enjoyable (e.g. smoking) (p.170). Rather they expressly refer to the autonomy and liberty needed to pursue a life as a normative agent, making decisions about how to lead a worthwhile life. Similarly, the higher level right of minimum provision, later called welfare (p.176), is a right to the minimum resources needed to live a life as a normative agent, but does not include the right to the “highest attainable standard of physical and mental health” (p.208, referring to Article 12 of the International Covenant on Economic, Social and Cultural Rights).

That this book is an exercise in moral philosophy, and not political philosophy or human rights theory, has an interesting consequence. Human rights and constitutional law tend to assume that human rights obligations fall on the state or other public authorities, though there are important exceptions in the constitutional law of Ireland, South Africa (Article 8.2 of the Constitution) and Namibia (Article 5 of the Constitution). In recent decades, lawyers have sought to deal with human rights violations by non-state actors. This they do frequently indirectly, by imposing duties on the state to prevent non-state actors from violating human rights. As an exercise in moral philosophy, this is not such a concern for Griffin. His theory can be applied to impose obligations on all persons, or at least negative duties of non-interference.

Where it becomes interesting is where one deals with what Griffin calls welfare rights (social and economic rights) and in particular the positive obligations commonly associated with welfare rights (though Griffin does not believe in a sharp distinction between rights having positive and negative obligations). Griffin believes these positive obligations can be kept within manageable limits by restricting the right’s content to that required by his theory of rights, the personhood account, and also allowing for the reasonable capacities and motivations of human [*836] beings (pp.98-101, 103). Griffin also addresses an objection to the universality of such rights. The objection is that these rights are not universal as they are owed only to some people and only by a particular duty bearer, their national community (p.102). Griffin solves this problem by introducing the notion of ability (p.102). The obligation to assist or help another, though a general obligation, depends on identifying someone able to help. In most cases this will be a national government, but if this is not possible, then positive obligations may shift to those better able to help, such as richer foreign states or trans-national corporations (pp.104-107).

The concluding chapters of the book apply the personhood account of human rights to some specific questions in human rights – the right to life, the right to privacy, the relationship between human rights and democracy and group rights. Griffin appears to be unflinching in following where this autonomy centred account leads him: “If one has a right to anything, one has a right to death” (p.221) (earlier Griffin concludes that infants have no human rights, though there are no doubt good reasons to protect them, p.91). This though needs to be qualified. Griffin also believes that practicalities have to be addressed and that most rights are subject to qualifications, so “The right to suicide seems especially vulnerable to being overridden” (p.222). Similarly when discussing privacy, democracy and group rights, Griffin is happy to challenge the prevailing language and jurisprudence in human rights law. He believes the right to privacy has been overextended, to include issues better treated as matters of liberty (e.g., sexual freedom, abortion, and so on). There is no good argument for group rights, at least as human rights, apart from those rights that are reducible to individual rights. This is not because Griffin is opposed to the types of claims groups make, but he believes we need language other than that of human rights to deal with them (e.g., rectificatory justice for indigenous peoples dispossessed during colonialization).

These are certainly thoughtful contributions to human rights theory, and Griffin does an excellent job of connecting theory to concrete human rights issues. I am not absolutely convinced by his description of his project as a “bottom up” one taking as its starting point how rights are discussed by politicians, activists, and the like, rather than a top-down approach that moves from abstract principles to concrete implementation (p.29). The political struggles from which human rights emerge (Klug 2005), and which would surely be central to any bottom up approach, take second place to Griffin’s project of understanding personhood as autonomous agency. In the actual struggle for law’s interpretation in the courts and beyond, there is a clear reason why rights are interpreted expansively. Terms like the right to privacy or a private life are interpreted to include matters that might be thought to fall under a right to health, or indeed might be thought to be important matters of environmental policy rather than human rights at all (on Griffin’s approach). The right to respect for a private and family life, and home in the European Convention on Human Rights has been interpreted to give rise to protection in relation to some environmental issues (e.g. pollution, noise pollution, and the like) in cases like GUERRA and [*837] HATTON. If these interests are not adequately protected elsewhere in the law, then this right can be interpreted to protect them. Similarly, Griffin’s suggestion that questions of sexual freedom should be dealt with as liberty and not privacy rights, though convincing philosophically, encounters a problem in Article 5 of the European Convention on Human Rights, or even the Fifth Amendment to the US Constitution. In these texts, the notion of “liberty” seems a narrower one than can be made to deal with sexual freedom. For this reason, both the European Court of Human Rights and the US Supreme Court have recourse to the right to privacy.

Griffin is concerned to protect an austere (though by no means impoverished) theory of rights, a view that sees human rights as the minimum level of protection needed to protect normative human agency. Human rights form a floor beneath which no society should fall. In setting this as his agenda, Griffin is standing against a particular trend in modern human rights law which sees human rights not as minimum entitlements, but as goals that should be progressively better realised. Griffin’s is a view of human rights that could be recommended to constitutional courts, but probably not to the many bodies whose job is to protect, promote and fulfill human rights, such as human rights commissions or even politicians. This more expansive view of human rights would appear to raise the question of the difference (if any) between human rights and politics more generally. In contrast, Griffin’s book offers a clear vision for demarcating human rights from other moral and political goals.

REFERENCES:
Klug, Francesca. 2005. “Human Rights: Above Politics or a Creature of Politics?” 33 (1) POLICY AND POLITICS 3-14.

O’Connell, Rory. 2005. “Do We Need Unicorns When We Have Law?” 18 (4) RATIO JURIS 484-503.

CASE REFERENCES:
GUERRA v. ITALY (1998) 26 European Human Rights Reports 357.

HATTON v. UNITED KINGDOM (2003) 37 E.H.R.R. 611.

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© Copyright 2008 by the author, Rory O’Connell.

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HONOR BOUND: INSIDE THE GUANTANAMO TRIALS

by Kyndra Miller Rotunda. Durham: Carolina Academic Press, 2008. 282pp. Hardback. $29.95. ISBN: 9781594605123.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.

pp.830-833

US Army Captain (now Major) Kyndra Miller Rotunda served several tours as a Judge Advocate General officer, including one as a prosecutor at the Office of Military Commissions and one in Guantanamo Bay. She worked with the Criminal Investigation Task Force (CITF) to assemble evidence against suspected terrorists. Those assignments offered a good opportunity to understand the military commissions underway at “Gitmo” and correct misconceptions about the procedures. Certainly there were many stereotypes advanced by both sides, with the government regularly defending the commissions as “fair” and “open” and critics dismissing them as a “kangaroo court.”

For readers hoping for an even-handed assessment, the initial appearance is not promising. First there is the cover: a hooded Islamic Jihadist holding a Koran in one hand and a grenade in the other. The Foreword by Rear Admiral [Ret.] James J. Carey sets an unfortunate tone. His opening paragraph describes the detainees as “committed to killing all Americans.” All of the detainees, including hundreds who the administration concluded had been wrongly apprehended and, over time, set free? His remark is similar to one by Defense Secretary Donald Rumsfeld, who called the detainees at the naval base as “among the most dangerous, best trained, vicious killers on the face of the earth.” To White House spokesman Ari Fleischer they were the “worst of the worst.” Carey ends the Foreword with this observation: “HONOR BOUND makes it clear to me that the words spoken long ago by another American Patriot are as true today as is this book which echoes them in this, the twenty-first century – ‘We must all hang together, or assuredly we shall all hang separatedly.’ Or be beheaded.”

Rotunda begins the book by arguing that the United States has “over-lawyered this war.” She identifies four mistakes by the government: “paroling known terrorists back to the battlefield; changing the trial rules in the middle of trial; imposing rules that made it difficult for prosecutors to respond to defense counsel claims that deserved a response; and giving detainees more rights than the Geneva Conventions require.”

On the first point, there have been reports that some detainees who were released from the naval base returned to the battlefield and participated in terrorist activities. No one can tell if those individuals were terrorists when they arrived at the naval base or became terrorists as a result of abusive interrogations and treatment. Point two: It is true that trial procedures underwent many changes, to the frustration of both prosecutors and defense counsel. “Evolving rules were confusing, [*831] inconsistent, inefficient, and unfair” (p. 211).

Regarding point three, why was it difficult for prosecutors to respond to criticism? Defense lawyers “tried their case in the media,” and the government was somehow unable, or unwilling, to “set the record straight” (p.197). The executive branch is seldom shy about defending its actions and usually quite capable of giving its side of the story. What were the inhibitions at Guantanamo? She writes: “It is unclear why DoD often opted not to respond to criticism brought forth in the media. The DoD acted like a punching bag – receiving punches but putting up no defense” (p.200). She says the Defense Department had 23 public affairs officers assigned to Guantanamo Bay. The Pentagon is quite skilled in justifying its policies and programs and recruiting people from the private sector to join in the defense. The book never explains what constraints existed, if any, on the public affairs officers, other than perhaps confusion and uncertainty on the part of the department as to how to respond. She praises Colonel Morris Davis, chief prosecutor in the fall of 2000, for publicly responding to criticism (pp.201-203). What prevented other executive officials from doing what Davis did?

Finally, there was a reason why detainees at Gitmo were given more rights than required by Geneva. They needed them. Unlike prisoners of war, who are released after a war and do not face trial, the detainees were subject to prosecution and possibly the death sentence. Rotunda asks: “in a war our enemies call a ‘religious war,’ where radical Islamists use their religion to justify brutally beheading innocent civilians, is it smart to exceed the Geneva Conventions?” (p.61). She does not provide a precise answer, but detainees who look forward to punishment and possibly execution are not prisoners of war and need rights beyond those listed in Geneva.

Rotunda compares the conditions at Gitmo with a prison in Ohio, where inmates are deprived of environmental or sensory stimuli and most human contact (p.55). The difference, of course, is that the inmates in Ohio were charged, tried, given counsel, had access to procedural safeguards, were convicted, sentenced, and could appeal. Detainees at Gitmo were held year after year without formal charges or trial. Rotunda concludes: “Nobody objects to the way Ohio holds these US prisoners. But, for some reason, many people demand better prison conditions for suspected terrorists in Gitmo.” Suspected terrorists, whether US citizens or aliens, need to know the basis for the suspicions and have an opportunity to confront evidence against them. Prisoners in Ohio had the full protection of Sixth Amendment procedural rights. Detainees at Gitmo, not subject to criminal prosecution in civil court, had no such rights.

In the passage just cited, Rotunda refers to the detainees as “suspected terrorists.” Elsewhere she omits the qualifier, as when she speaks of sharing the island “with over 800 detained terrorist enemies” (p.59). Some detainees were terrorists, some were enemies, and some were innocently swept up on the battlefield or handed over to US authorities in exchange for payment, as part of a bounty system. Lt. Col. Diane [*832] Beaver, Staff Judge Advocate at Gitmo, at one point told Rotunda that the detainees were not POWs: “These people are terrorists” (p.67). They were suspected terrorists. Often the suspicions were found to be baseless. The whole purpose of the Combatant Status Review Tribunals (CSRTs) was to determine who was and was not an enemy combatant.

Some sections of the book explore the question of interrogation techniques. An interrogator for the Office of Naval Intelligence told Rotunda that building rapport with a detainee is the best way to obtain information. “If they like you, they’ll talk.” Other interrogators gave similar advice to Rotunda. Sharing tea with detainees, bringing sandwiches from Subway or french fries from McDonalds was effective. “Gentle interrogation approaches were the most effective” (p.81). A CITF agent and an FBI agent, both of them Muslim, “knew how to coax the truth from detainees’ lips. One word captures their effective, secret ingredient to successful interrogations – patience” (p.123). These accounts undermine the administration’s case for “harsh” interrogation methods, including waterboarding.

Chaplain James Yee, a Chinese-American West Point graduate who had studied Arabic and Islam, was assigned to Guantanamo. He was arrested, suspected of espionage, but those charges were dropped. Rotunda says he left the naval base with “sensitive documents” and asks: “Was Yee part of a greater plan to target US interrogators and their families? Was he attempting to aid the enemy – his Muslim brothers? If not, why would Yee leave Guantanmo Bay with this information? And what exactly were the documents? We don’t know because the government hasn’t told us” (pp.78-79). Why raise those questions about Yee if the facts are not known?

Rotunda reflects on her experience with the Office of Military Commissions. “I believe then, as I do now, that bringing detainees to justice is the right thing to do” (p.204). But she says “one important question” has been overlooked: “whether the government should proceed with military tribunals during a time of war, at all” (emphasis in original). The government “should consider waiting until the war is over. So long as we are at war with terrorists, perhaps the US has more to lose than gain by trying detainees in Guantanamo Bay.” Fighting a war “and prosecuting war criminals simply doesn’t work. Ordinarily we would prosecute war criminals after – not during – a war.” If it is the right thing to bring detainees “to justice,” why wait until the war on terrorism is over, if it ever is? Why are detainees at Gitmo “war criminals”? Rotunda concedes: “We have no idea when the war could end.” “Just like every other war, this one will end. We do not know when, and we cannot predict how, but eventually US troops will come home and active hostilities will end” (p.208). If military operations in Iraq and Afghanistan were to end and US troops returned home, the war on terrorism would not necessarily end.

Every book suffers from typing errors. This has more than its share. Rotunda recalls that in a training exercise a soldier pointed his gun at her: “I was in his sites” (sights). She refers to “Charles Garner” (Graner) and “Neil Kaytal” [*833] (Neal Katyal). Thousands “headed” (heeded) a warning. A decision was handed down by Justice “Stephens” (Stevens). “Chief Justice Robertson” (Roberts) made a remark about judges calling balls and strikes. A defendant was “Salem Ahmed Salem Hamden” (Salim Ahmed Hamdan).

Writing styles vary, with many authors deciding to include personal details in an effort to make a book more appealing. Here are some examples. “I pulled my Mazda Miata around the corner, and into the parking garage.” “I threw my stick behind a rock, and he picked at a callous on his thumb.” She “popped a lime-flavored Skittle” in her mouth. “The water trickled down my tired face” as she “lathered my palms with the Dial soap bar.” “The air conditioner on our vehicle was on the fritz, yet again.” “I lugged my bags from the cab.” “I lugged my bags out the door.” Soldiers disappeared into “the smoke filled bar.” The sun “peaked through the curtains.” Early one morning “I was brushing my teeth over the sink.” She took “a fistful of M&Ms from the M&M dispenser on our team leader’s desk.” One colleague was “tapping ashes from her cigarette.”

Other passages attempt to create a climate: “The cool air nettled my lungs, but the fall aroma always smelled so good that it was worth the sting.” “For November, it was a warm afternoon in Washington, D.C. I decided not to take my coat.” “I took off my beret and put it in my handbag as I stepped into the elevator, and pressed the button for the floor where my office was located.” “My story ends, as it began five years earlier, on a sunny September day. I parked my car in the faculty parking lot at the George Mason University Law School, and flung my bag over my shoulder as I walked toward the building.”

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© Copyright 2008 by the author, Louis Fisher.

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THE PREEMINENCE OF POLITICS: EXECUTIVE ORDERS FROM EISENHOWER TO CLINTON

by Ricardo Jose Pereira Rodrigues. New York: LFB Scholarly Publishing, 2007. 318pp. $75.00. ISBN: 9781593322120.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: davidddehnel [at] augustana.edu.

pp.826-829

According to Richard Neustadt’s classic study, the essence of presidential power is the power to persuade, not command. Yet, through executive orders and other vehicles, presidents often adopt the posture of command. In THE PREEMINENCE OF POLITICS, Ricardo Jose Pereira Rodrigues argues that in practice executive orders confirm Neustadt’s thesis. Executive orders are shaped by the president’s political environment, and their effectiveness is constrained by actors inside and outside the government. Rodrigues concludes that the active use of executive orders by modern presidents does not signify a dangerous expansion of executive power.

In this study, Rodrigues is concerned with political checks on presidential power, and, for the most part, sets aside legal considerations. Accordingly, the interaction of law and politics is not much explored in this book, rendering the study less interesting to scholars of public law than, for example, Phillip Cooper’s excellent BY ORDER OF THE PRESIDENT. Rodrigues implicitly follows Neustadt, not only by focusing on persuasion versus command, but also by downplaying legal aspects the separation of powers. In the Neustadt’s often quoted formulation, the structure of American government is one of “separated institutions sharing powers” (p.29). For Rodrigues, it does not matter whether an executive order has any foundation in statutory or constitutional law, the president is simply exercising power (executive or legislative) that is shared with Congress. As I will argue below, this approach necessitates that the book’s upbeat conclusions be qualified.

Rodrigues draws his conclusions from a qualitative study of executive orders in three policy areas across nine presidencies. Following earlier studies, Rodrigues defines executive orders as formal, published statements directed to members of the executive branch (p.14). He distinguishes between policy-oriented and housekeeping orders. The latter are described as “orders which deal with personnel matters and with matters that have to do with the mechanics of running the federal administration, such as building maintenance, etc.” (p.15). Setting aside the housekeeping orders, Rodrigues examines the policy-oriented orders relating to equal employment opportunity, central control of regulatory authority, and environmental policy. The presidencies of Eisenhower, Kennedy and Johnson are only represented in the analysis of employment opportunity. The discussions of regulatory review and environmental policy begin with the Nixon presidency.

Rodrigues’ contention that the use of executive orders is constrained by forces internal and external to the government [*827] is explored through the systematic application of hypotheses relating to the congressional environment, the public opinion environment, and the make-up of the president’s own supporting coalition. For each of the three policy areas, all of the policy-oriented executive orders are scored in relation to each of the six hypotheses specified in the study. These results are summarized in tables. Although the tabular data shapes the general conclusions, the core of the study is a qualitative analysis of the historical context of each order, based on a survey of the secondary literature.

With respect to Congress, Rodrigues considers three factors: party control, internal division over the issue, and congressional “intent.” Prior studies had suggested that presidents might resort to the use of executive orders when facing a Congress controlled by the opposing party (divided government), in order to enact unilaterally what they cannot accomplish through legislation. Rodrigues finds little support for this in his study. Instead, he contends that presidents tend to take the initiative when congress is internally divided on an issue, regardless of party control. If Congress is unified, the president generally does not attempt to issue orders that run contrary to the will of the body. In general, Rodrigues finds that while presidents do not use executive orders to govern in defiance of Congress, internal division in the legislature does provide an opportunity for presidential policy making.

With respect to constraints on the President from outside the government, Rodrigues explores the effect of three factors: public opinion, presidential prestige, and the make-up of the supporting coalition. Rodrigues finds that presidents usually issue orders in pursuit of policies that are supported by the public. This he sees as further assurance that presidents do not act as imperious free agents. Rodrigues doubts that presidential prestige is an important factor in the decision to issue an order. Although orders tended to be issued by presidents with high approval ratings, Rodrigues finds little evidence in his qualitative analysis to support the significance of high prestige as a causal factor. Finally, Rodrigues finds that, at least in some cases, presidents were motivated by sensitivity to the interests of important groups in their support coalition. Overall, Rodrigues sees presidents as responding to, and being constrained by, democratic political forces.

In the area of equal employment opportunity, the importance of the government as an employer and contractor allows presidents to initiate important policies using their supervisory authority over the executive branch. This has been the subject of a series of executive orders beginning with Eisenhower. Rodrigues argues that internal divisions in Congress on race issues, especially among the Democrats, have created political space for presidential initiative. On the other hand, he finds that presidents have been responsive to shifts in public opinion and the views of members of their support coalitions. On affirmative action, for example, Democratic presidents must balance the demands from minority groups in their support coalition against public skepticism. Ronald Reagan’s opposition to affirmative action was in tune with public opinion, but his attack [*828] was tempered because of support for it from corporate employers. The overall result, according to Rodrigues, is that policy change by executive order in this area has been incremental.

While Rodrigues’ overall argument on employment opportunity is persuasive, there are some weaknesses in the analysis. Richard Nixon is credited with introducing the strong form of affirmative action, including the use of numerical targets (a.k.a quotas). These policies, however, were initiated at the agency level, and Nixon’s support for them was informal. Given that most of the book sticks to executive orders, the discussion of Nixon’s role could be clearer. The discussion of Reagan, Bush Sr. and Clinton is plagued by much confusion over the term affirmative action. At times Rodrigues uses the term too broadly, applying it to equal employment policies generally. The management of claims of bias by the Equal Employment Opportunity Commission (p.76), the standard of proof in employment discrimination cases (p.92), and the inclusion of sexual orientation in anti-discrimination rules (p.98) are not “affirmative action” policies.

Given the breadth of environmental policy, it is not surprising that the strength of Rodrigues’ study lies in the rich details he describes rather than the generalizations he attempts to make. Throughout the book, Rodrigues treats internal division in Congress as a key variable, with such division creating the opportunity for presidential initiative. Ronald Reagan is seen as taking advantage of congressional division to launch anti-environmental initiatives in his first term, while Bill Clinton is depicted as exploiting division within the Republican controlled Congress for the opposite purpose during his second term. Yet, the empirical indicators of “internal division” used by Rodrigues are admittedly subjective (p.19), and it is difficult to define when it exists and when it does not. The blow by blow accounts of specific orders do show presidents taking advantage of their political opportunities, but the causal analysis runs into a danger of circularity. Successful presidents are seen as operating in a context of congressional division, while less successful or more cautious ones are deemed to be up against an undivided Congress.

The section on regulatory review is a careful study of presidential attempts, beginning with Richard Nixon, to establish centralized control over rule making by federal agencies. Rodrigues’ inattention to legal nomenclature creates some analytical confusion here as elsewhere. He uses the phrase “congressional intent” to signify the current policy preferences of the legislative branch, such that a president acts contrary to congressional intent if an executive order is in opposition to the preferences of a majority in Congress (p.18). Orders on regulatory review are said by Rodrigues to satisfy congressional intent if they match the ideological disposition of the current Congress towards regulatory policy. For scholars of law and politics, an order runs contrary to congressional intent when it violates the spirit of the legislation upon which it purports to be based. Intent relates to the purpose of congressional action, not merely to the preferences of its members. Agency regulation itself raises both legal and political questions about the authority to [*829] make law, and centralized review of proposed regulations by agents of the president adds another layer of complexity. Legislative intent and congressional preference should be distinguished.

The approach taken in THE PREEMINENCE OF POLITICS makes the book of tangential interest to public law scholars because legal factors are generally ignored. In particular, Rodrigeus’ upbeat assessment of executive orders does not account for their potential corrosive impact on the rule of law. Rodrigues does not examine the statutory or constitutional foundation of the orders he studies, or the lack thereof. He “makes no distinction between executive orders conceived as a means to implement a statute and executive orders designed to set unilateral policies” (p.15). Rodrigues’ study is limited to the policy substance of the orders, the political calculations of the president, and the response of other political actors to the order. Accordingly, his conclusion that the use of executive orders presents no serious threat to the balance of the political system does not account for their impact on legal institutions. In his important study of executive orders and other forms of presidential direct action, Philip Cooper (2002) argues that, when Presidents attempt to achieve their goals through actions of dubious legality, they undermine the formal and informal structures that bring coherence and legitimacy to public policy.

While it is certainly true that modern practice has made it is difficult to draw lines between legislative and executive power, political scientists should not yet abandon the possibility of retaining some coherence in the structure of governmental functions. It is reassuring to know, as Rodrigues concludes, that the president is not functioning as an unconstrained dictator, but the possible corrosive effects of unilateral presidential action on the rule of law remain a concern.

REFERENCES:
Cooper, Phillip. 2002. BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION. Lawrence, Kansas: University Press of Kansas.

Neustadt, Richard. 1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.

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© Copyright 2008 by the author, David Dehnel.

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POWER PLAY: THE BUSH PRESIDENCY AND THE CONSTITUTION

by James P. Pfiffner. Washington: Brookings Institution Press, 2008. 299pp. Cloth $28.95. ISBN: 9780815770442.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University (Montreal, Canada). Email: gdodds [at] alcor.concordia.ca.

pp.822-825

As the presidency of George W. Bush draws to a close, academics are beginning to debate Bush’s place in history, his impact on the institution of the presidency, and his overall legacy. Of course, the Bush presidency has been controversial not only politically, but also constitutionally. In Power Play, James P. Pfiffner examines Bush’s impact on America’s constitutional order. Pfiffner (University Professor of Public Policy at George Mason University and the author or editor of ten books on the presidency and American government) argues that Bush has not just pushed the limits of executive power but has transgressed them, threatening the very foundations of American government. For Pfiffner, Bush’s actions have challenged and undermined fundamental rights, the balance among the three branches, the possibility of republican government, and even the rule of law.

After a brief overview and introduction in the first chapter, the book proceeds in two parts. Chapters 2-4 are devoted to the theoretical, constitutional, and historical background of executive power, while Chapters 5-8 look at four cases of Bush overreaching: denying habeas corpus, permitting harsh interrogation techniques, engaging in warrantless domestic spying, and using signing statements to alter legislation – or as Pfiffner entitles the chapters – the powers to imprison, to torture, to surveil, and to the ignore the law.

In Chapter Two, Pfiffner considers “The Nature of Executive Power,” particularly how it has been legitimated and constrained. He discusses Machiavelli, Hobbes, Locke, and Montesquieu as sources of the framers’ ideas about executive power. Political theorists may well want more than the thumbnail sketches that Pfiffner offers, but this chapter serves to ground controversies about executive power in western political thought. In Chapter Three, Pfiffner moves from theory to constitutionalism and chronicles “the historical development of individual rights and the rise of Parliament in England” (p.32). The discussion here ventures fairly far afield, as Pfiffner goes all the way back to William the Conqueror, King John, and the 1628 Petition of Right. But the main point of this background is to set forth the various ways that Englishmen wrested power from kings over the years (p.54).

Pfiffner turns to the US Constitution in Chapter Four. He claims that the American founders sought to keep many of the checks on monarchical power that their English forebears had won, so they were careful to limit and check executive authority. Pfiffner mentions the experience of the colonial era and the Articles of Confederation, then recounts some of the history of the constitutional [*823] convention and the framers’ treatment of the presidency and war power. He maintains that the framers had a “distrust” of executive power (p.61) and therefore produced a document the “plain words” and history of which supposedly refute many of the Bush Administration’s claims (p.82).

With all of this background in place, Pfiffner then examines four actions in which the Bush Administration advanced radical claims about executive power. Chapter Five is devoted to Bush’s denial of the “Great Writ” of habeas corpus. Pfiffner traces the history of habeas from Stuart-era England through Lincoln and EX PARTE MILLIGAN to FDR and EX PARTE QUIRIN, then he briefly goes through the judiciary’s rejection of Bush’s actions in RASUL, HAMDI, and HAMDAN. Pfiffner also covers several less well known cases of individuals who were mistakenly imprisoned without legal recourse, as well as the Bush Administration’s policy of rendition, in which suspected terrorists are sent abroad to be tortured by foreign governments.

In Chapter Six, Pfiffner discusses the Bush Administration’s use of extreme interrogation techniques, including torture. He criticizes the legal memos written by John Yoo, David Addington, Alberto Gonzalez, and Jay Bybee that suspended the protections afforded by the Geneva Conventions and paved the way for torture, as well as an executive order that Bush issued in July, 2007 to assert his authority to interpret the application of the Geneva Conventions and to authorize harsh interrogation techniques, such as waterboarding. According to Pfiffner, “this was the first time in history that the decision to torture enemy prisoners was connected to and defended by the president” (129).

Chapter Seven examines Bush’s secret program of domestic spying, in apparent violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which the NEW YORK TIMES revealed in late 2005, despite a Bush Administration request not to do so. Pfiffner presents and rebuts several different Administration arguments about Bush’s policy (p.174), arguing that even if it were necessary, Bush should have gone through Congress rather than unilaterally ignoring existing law.

Pfiffner discusses Bush’s use of signing statements in Chapter Eight. Signing statements accompany the president’s signature of legislation and can be use to interpret creatively or even undercut laws. For example, when Congress acted to ban torture by approving Senator John McCain’s amendment to the Detainee Treatment Act (DTA) of 2005, Bush sought to mitigate its restrictions through a singing statement that suggested the president would not be bound by the new law. Summarizing existing scholarship, Pfiffner notes that historically most signing statements were merely rhetorical, but this began to change under Ronald Reagan, when statements began regularly to make constitutional claims. The Bush Administration has openly tried systematically to use signing statements to carve out more power for the president. Bush has issued 159 signing statements, through which he recorded objections to 1,167 legal provisions (p.203). For Pfiffner, some of Bush’s signing statements amount to “threats to fail to execute the law faithfully” (p.227). As such, they “directly challenge the ability of Congress to constrain executive actions, the nature of [*824] the rule of law in the United States, and the meaning of the separation of powers system” (p.195).

Pfiffner thus covers a lot of ground in this book, from various background considerations about executive power to four cases of alleged overreaching. This is controversial stuff, and Pfiffner’s account invites a number of criticisms, most of which he seems to anticipate. For example, one might ask whether Pfiffner unfairly singles out Bush. After all, other presidents have engaged in some of these actions, too. Pfiffner concedes that during the twentieth century, most presidents have dominated Congress, but he claims that “this domination reached a peak under the presidency of George W. Bush” (p.57). For Pfiffner, Bush simply went much further than his predecessors.

Alternatively, one might charge that Pfiffner’s criticisms are unfairly partisan. But Pfiffner notes that many of the more damning criticisms of Bush’s actions have come from Republicans and even members of the Administration (p.185). Indeed, Attorney General John Ashcroft is presented as a critic of Administration policy in two of Pfiffner’s four cases (habeas and spying). Civil libertarians may scoff at the notion of the author of the Patriot Act being a hero, but Pfiffner’s presentation is fairly even handed.

A related criticism is that perhaps Pfiffner is just being too harsh, or that his charges are overblown or hyperbolic. And Bush does indeed come in for some damning criticism here. For example, Pfiffner claims that Bush has shown “contempt for the other branches of government” (p.244), “Bush claimed that the checks and balances in the Constitution did not bind him” (p.245), and Bush “claimed powers once asserted by kings” (p.2). According to Pfiffner, “He has expanded the constitutional authority of the president in extraordinary ways and has tried to undo constraints that the Constitution places on executive power” (p.229).

But Pfiffner seems to have defenses against the charge of hyperbole. First, he notes that most Americans think of their basic constitutional arrangements as being set in stone and safe, such that they tend not to notice the erosion of the rule of law (p.xi). In other words, maybe few citizens are up for the sort of eternal vigilance necessary to safeguard the system they take for granted, but constitutional transgressions must nevertheless be taken very seriously. Second, for Pfiffner, the real danger of Bush’s actions lies in their value as precedents. He says that “precedents make a difference” (p.242), so that Bush’s actions may serve as “loaded weapons” for future presidents to use (p.12). Indeed, Pfiffner twice quotes Madison in FEDERALIST No. 10: “Enlightened statesmen will not always be at the helm” (pp.127, 192). Therefore, Pfiffner says that Bush’s actions must be challenged and struck down: “If left to stand, these precedents may very well undermine the republican nature of American government” (p.57).

The question of the severity of Pfiffner’s charges may also turn on one’s view of exactly why Bush engaged in the actions that Pfiffner criticizes: did the president do it just for the sake of political expediency, to make what he regarded as good public policy, or to advance a particular conception about presidential power? The first possibility seems far-fetched, as none of these policies has been a political boon to Bush; indeed, [*825] they have contributed to his dramatic unpopularity. Pfiffner touches on the second possibility in admitting that the 9/11 attacks demanded a serious, thorough response and that some of Bush’s actions (excepting torture) might have been effective. He also concedes that Bush was sincere in his belief that he was acting in the nation’s best interests (p.174). As for the third possibility, Pfiffner maintains that the Bush Administration’s actions were part of a conscious, concerted effort to increase the power of the presidency. According to Pfiffner, Bush and Vice President Dick Cheney wanted to recapture presidential prerogatives that Congress had taken away, as they thought that the reaction to the “imperial presidency” after Watergate simply “went too far” (p.3). Insofar as Bush’s actions were part of an effort to advance this principled view of executive power, our assessment of them may turn on what we think about the status quo ante: were Congress’s actions after Nixon excessive or a legitimate reversion to the appropriate state of affairs?

Whether Bush’s actions amount merely to pushing the constitutional envelope or to destroying it altogether, there is the question of what could and should be done about it. And here Pfiffner seems equivocal. One obvious response is to look to the other two branches, and Pfiffner notes that Bush’s actions almost “invite an overreaction by Congress” (p.228), presumably of the sort that Bush and Cheney discern after Watergate. Yet Pfiffner also notes that Congress had been largely ineffective in rebutting Bush and has even acted to legitimate some of Bush’s audacious claims by passing legislation that has “given the patina of law to Bush’s actions” (p.127). Pfiffner seems mainly to want Bush just to admit that he has limits, as if this simple act of self-realization would be enough to safeguard the constitutional system. He says, “For the Constitution to endure, governmental officials must act with restraint and admit that they do not have exclusive power” (p.192). Ideally, the well-functioning of the American polity would be assured by more institutional means and need not rely upon an individual’s inclination to act with restraint, but a presidential concession of limits could be a good place to start.

In sum, POWER PLAY is an accessible account of some the ways in which the Bush Administration has advanced controversial claims about executive power and why their actions are constitutionally dangerous. The book should appeal to scholars of American politics, the presidency, and public law. It is suitable for both undergraduate and graduate students, as well as a general audience.

CASE REFERENCES:
EX PARTE MILLIGAN, 71 U.S. 2 (1866).

EX PARTE QUIRIN, 317 U.S. 1 (1942).

RASUL v. BUSH, 542 U.S. 466 (2004).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

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© Copyright 2008 by the author, Graham G. Dodds.

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