Thursday, September 14, 2006

Mahir, lonelygirl15, and the Sexbots of the Future 

"WELCOME TO MY HOME PAGE !!!!!!!!! I KISS YOU !!!!!"

With these words was born the age of the Internet celebrity, and Turkish journalist Mahir Cagri was immortalized as an icon of Internet kitsch by the homepage set up as a prank by one of his friends. The URL was passed around via email for a few days in 1999 before being reported in Salon by Janelle Brown. The persona of "Mahir", a naive, friendly creep whose homepage was populated with nuggets of broken English, frank sexual come-ons ("I like sex"), and pictures of him sunbathing in his Speedo, was simultaneously lovable and ridiculous; it later served as the inspiration for Sacha Baron Cohen's character "Borat" on Da Ali G Show. (It also bore strong similarities to other archetypes celebrated in America: the wise fools from Forrest Gump and Being There, for instance, both exhibit naive expressions of their sexuality as part of their charm.)



Flash forward to last week. A small group of filmmakers announced themselves as the creators of "lonelygirl15", a character in a series of YouTube videos that purported to be genuine self-portraits sent, like messages in bottles, out onto the Web by a cerebral, geeky, nubile young girl in small town USA. Not surprisingly, lonelygirl15 had gathered quite a following of smitten young (and, presumably, not-so-young) men. Some of them had even struck up correspondences with her, generated on her end by her creators, and many of her fans, smitten or not, felt betrayed by the reveal.

danah boyd summarizes the story quite well, including links to the New York Times coverage and other bloggers' reactions. One commenter on danah's blog compares the lonelygirl15 project to the viral videos at the center of William Gibson's novel Pattern Recognition; ludologist Jane McGonigal points out that, rather than being derived from the novel, the lonelygirl15 project's surface similarities to Gibson's videos owe to their common ancestry in the Alternate Reality Game movement.

But I think McGonigal has overlooked a stronger precedent for lonelygirl15 in the novel: in one section of the story, a team of investigators tracking the videos create a fictional woman online to charm and scam one of their leads through email correspondence. The plot backfires when the real woman whose photo served as the template for the virtual vamp discovers how her photo is being used and insists on meeting the love-struck dupe. It's this moment - the encounter with the actor out of her stage makeup - that lonelygirl15's fans are trying to process now, just as the world had to process the reticence of the real Mahir after he was brought into the spotlight to explain away his flamboyant homepage as a prank and a hoax.

Max Barry, a writer whose novel Jennifer Government displays a wickedly sharp insight into the future of marketing, weighs in on the fan-base fallout with his take on the LG15 reveal:

lonelygirl15 didn’t succeed because it told a compelling story. It succeeded because people thought it was real. Without the deception, there’s nothing special. The filmmakers knew this; they went to a lot of trouble to keep up the pretense, to the extent of posting personal replies, as Bree, to people who wrote in. They built fake relationships with fans...

This is what makes it marketing, not storytelling. Storytelling doesn’t abuse its audience. Without the bit at the start that says, “This is made up,” it’s not storytelling; it’s just lying...

Every fiction writer in history has probably been annoyed by how much more power a “true story” seems to have. But that’s the deal we make: we admit up front that our tale isn’t true, then we desperately try to make it as authentic as possible. Doing it the other way around—claiming to have a true story and filling it with fiction—that just pisses me off. Storytelling? A new art form? Give me a break. When you agree to the deal, then you can be storytellers. Until then, you’re marketers.


(Personal note: I share Max's pet peeve about the free ride a "true story" gets, and I imagine that anyone who read A Million Little Pieces as a memoir rather than a novel can probably sympathize with the lonelygirl15 lonelyhearts. My annoyance over this gimmick accounts for my aversion to memoirs and to anything out of the Tom Wolfe "new journalism" movement: if something can't stand up as a work of historical scholarship or journalism, then I will read it as a novel. Accordingly, the only pseudo-fiction I've read and enjoyed in the past few years was The Devil In The White City, which was rigorous enough historically to let me enjoy the poetic license taken with the narrative account.)

Barry has hit the nail on the head: just because they weren't selling anything doesn't mean it's not marketing. lonelygirl15 is a proof of concept for viral sex-based marketing. (Is "sex-based marketing" redundant?) And it worked like a charm: Barry's post carries a pathetic quotation from one of lonelygirl15's ardent admirers who had corresponded with "her" via email and now feels personally betrayed. If the marketers had kept it up longer, they could have leveraged the LG15 brand to coax all kinds of things out of her "fans", including access to very personal information. Simson Garfinkel points out the risk of this kind of scam in his book Database Nation: his example deals with a chatbot impersonating a potential friend/sexual partner and gradually insinuating itself into its target's private life. Indeed, this kind of scam already exists on social networking sites like Friendster and MySpace; I myself used to occasionally receive messages from buxom young women who were new in town and wanted me to email them so we could party. And this, in turn, is just a refinement of the tried-and-true email scam, although plaintext is more suited to Nigerian millionaires than to dirty pretty things.



I'm not trying to pull a New York Times-style "Internet Scare" move here: I realize that the damsel-in-distress gambit is one of the oldest and most successful meatspace scams around. The Internet has simply made the scam much more effective, for the same reasons that spam is more effective than traveling salesmen: the pitch can be delivered to millions at a time, and the shill is protected from discovery and accountability by his or her physical remoteness.

For this reason, I expect to see a lot of lonelygirl15-style marketing in the future. The marketers will probably employ real models and actors (witting or unwitting) for their photo and video content. We will see a convergence of the email spam scam, the "reality" TV show, the virtual pop star, the fraudulent personal ad (see the recent Craigslist sex post controversy), blogger payola, astroturfing, and buzz marketing in this new hybrid form of fraud. It will be employed for rip-and-run attacks (identity theft, credit card fraud), product marketing, blackmail, malicious humiliation, political smears, and most insidiously, slow infiltration of people's private lives for surveillance and consumer profiling. Its effectiveness will depend on exploiting people's compassion, loneliness, curiosity, and friendliness. And it will produce a society of scarred, embittered, suspicious human beings.

I've written before about the plastic nature of identity on the Internet and the willingness with which young people compromise their privacy online; both of these topics have been flogged to death by better writers than I. But it seems to me that the road from Mahir to lonelygirl15 is a particularly poignant allegory for the Internet's loss of innocence: the transformation of the Internet celebrity hoax from light-hearted joke to annoying publicity-grab to calculated marketing ploy.

Thursday, September 07, 2006

A Brutal Example: John Yoo's Historically Blind Constitutionalism 

"Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren. Provide everything necessary for them on the road."

- George Washington, 1776, on the treatment of Hessian prisoners after the Battle of Trenton


Introduction

The Bush administration has announced that it is fighting a war against terrorism. Upon this pretext they have employed unprecedented military and police tactics: in Iraq, in Afghanistan, and elsewhere, including on American soil. Prisoners - sometimes captured on the battlefield during active hostilities, but often seized in their homes or on the streets - are being held without charges and without access to counsel. The treatment of these prisoners during detention, as documented by numerous international agencies and military legal authorities, fails to meet the standards of humane care that govern US military and police conduct, as defined by the country's various statutory and international treaty provisions. In fact, the abuse of prisoners documented at various US detention facilities in Afghanistan, Iraq, and Guantanamo Bay not only conflicts with US and international law, but also disrupts a previously unbroken 230-year-old tradition of American humanitarianism and honor in times of war that finds its genesis in the conflicts that founded our country.

The administration's position on detainee treatment has taken shape through a roundabout series of legal and bureaucratic maneuvers since September 2001. Various legal positions were formulated for different contexts – the war in Afghanistan against Taliban soldiers, the invasion of Iraq, and the domestic detention of Al Qaeda suspects – but found themselves being misapplied and transplanted from one context to another as a result of personnel changes and confusions of policy between different branches of the military command structure. All in all, the US military culture of humane treatment of prisoners found itself transformed by a series of legal rationales and command decisions made at the highest levels of the executive branch which, through deliberate obfuscation and perverse incentives, fostered a culture of abuse and torture at the lowest levels of the Military Police and Military Intelligence charged with direct oversight of prisoners. Indeed, recent disclosures by the military have revealed direct involvement by the Secretary of Defense in the torture of at least one detainee during his interrogation.i

This top-down policy of detainee abuse, which has now permeated military culture and done irreparable damage to its long tradition of humane treatment of enemy prisoners, can be traced to a handful of legal memoranda passed among the Department of Defense, the White House, the Department of Justice, and the State Department over the months and years following September 2001. One legal memo in particular, written by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General Jay Bybee in August 2002, has come under severe criticism for its convoluted and unprecedented arguments justifying the abuse of prisoners. The memo makes a multi-level argument in favor of executive leeway in treatment of prisoners, arguing first of all that the legal definition of “torture” as prohibited in various US laws is much narrower than most legal authorities would suppose, then going on to argue that the laws in question do not apply to the President or his agents during the present conflict, and finally going on to offer a series of affirmative defenses for the President and his agents in the event that they are found liable for torture under those laws. It falls in line with a concurrent memo by Yoo on the same subject and a previous memo written by Bybee arguing for the inapplicability of such laws to enemies of the US during the current conflict.

Each stage of the memoranda's arguments is deeply flawed. The definition of torture adopted by Yoo is shockingly narrow in light of the word's commonly understood meaning in historical and legal contexts, both foreign and domestic, including the actual context in which it was codified as US law. The argument for inapplicability of the Geneva Conventions to enemy combatants lacks historical or legal precedent and is out of line with US military tradition. The suggestion that an otherwise culpable torturer might find shelter in the criminal defenses of necessity or self-defense are patently absurd. But the torture memo's most sweeping and drastic argument is where much of the controversy has centered. The memo makes the argument that, in times of military conflict, the Executive is above the law: international law, the law of war, and even the laws passed by the Legislature. It is here that Yoo conducts a reading of the US Constitution that turns a willfully blind eye to legal precedent and to the historical facts surrounding the drafting of the document itself. Yoo makes a case for an Executive with no check on its wartime powers: once war has been declared by Congress (a doubtful proposition which Yoo takes for granted), the Executive operates independent of any legal constraint until it decides that hostilities have ended. In interviews conducted since the memos have come to light, Yoo has claimed that the only restraints on the wartime powers of the Executive are the Congressional power over war spending and the electoral process itself; but because Congressional de-funding of war while troops are deployed would mean political suicide for any legislator proposing such a measure, the only actual check on Executive power at such a time would have been the election of another candidate during the 2004 Presidential election. In essence, Yoo has said, a vote for Bush in 2004 was a vote for torture, and any chance at reining in the policy of detainee abuse disappeared after those votes were counted.

The actual jurisprudence of war powers is, unsurprisingly, much more nuanced and much more dependent on systems of checks and balances between Congress and the President than Yoo's analysis. While the Constitution vests the Executive with significant leeway in conducting the day-to-day operations of the military in wartime, Congress if charged with the duty of formulating the rules of war that constrain the operation of the Executive as Command in Chief of the military. Congress is specifically vested by Article I, Section 8, Clause 11 of the Constitution with the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”. The plain language of this clause, as well as its jurisprudence, lays out two distinct mechanisms by which Congressional authority may act on the Executive with respect to the capture and treatment of prisoners: the Congressional power to “declare War” or to decline to make such a declaration, and the Congressional power to make rules regarding “captures”. The first power is addressed briefly and dismissed in Yoo's memos, reading Congress's Authorization for the Use of Military Force (AUMF)ii as a declaration of war. But Yoo fails to address the possibility, first, that Congress's formulation of the AUMF was intended to place concrete limits on the scope of the conflict, or second, that if unlimited war powers against undefined enemies for an indefinite period of time were in fact what Congress intended by the AUMF, whether such delegation of Congressional war powers to the Executive is Constitutional. More strikingly, Yoo's memo ignores entirely the second relevant power: the power to “make Rules concerning Captures on Land and Water”. The memo's silence on this clause can only be explained by examining scattered statements made elsewhere by Yoo, in which he has dismissed the clause as applying only to captures of property in wartime: seizures of ships by naval blockades, confiscation of supplies bound for enemy troops, and so on. While such captures of property were certainly encompassed within the framers' intent in drafting that clause, and much of the wartime jurisprudence of the “Captures” clause centers on ship captures, ample support exists for the proposition that the clause grants to Congress the exclusive power to make rules for capture of prisoners during wartime as well. Constitutional scholars and jurists from John Marshall onwards have always understood the clause to govern captures of people as well as property, and the history of warfare, detainment, and slavery in the United States and Europe at the time of the Constitution's drafting leave no other possible construction of the language. An honest scholar of the Constitution can arrive at no conclusion but that Congress holds the power to set the rules by which the Commander in Chief can seize not only ships and their cargoes, but also prisoners of war, and that the disposition of such goods and persons is governed by Congressional laws.

Once we accept this Constitutional interpretation, a series of legal consequences follow with respect to the Bush administration's conduct in its war on terrorism. If Congress is tasked with making rules concerning the capture and detention of prisoners, then the question first arises: what rules has Congress made? The United States is a signatory to several international treaties governing the treatment of prisoners of war and banning the use of torture. Congress has implemented these treaties and incorporated their provisions into US federal law. In fact, the entire history of international humanitarian laws of war finds its origins in US regulations, beginning with the adoption of the Lieber Code in the 19th century and finding continuity through the drafting and adoption of the Hague Conventions, the Geneva Conventions, and subsequent international standards for the humane treatment of prisoners. Any examination of Congressional action on the subject of POW treatment reveals an unbroken chain of strict, humane rules that place the United States at the forefront of nations in moral action toward the enemy during wartime. To conclude otherwise from a reading of the legislative record is to ignore clear precedent and unambiguous intent in favor of humane treatment and dead-set against torture for any purpose.

After we settle on the statutory regulations put in place by Congress governing the treatment of prisoners, we must next ask: did Congress intend to delegate its own ability to legislate on such matters to the President during the present conflict? The AUMF grants the President the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks”. It is first of all not clear that this constitutes a declaration of war, or whether such a declaration would be within the scope of even Congressional power if it fails to specify an enemy nation or a set of criteria by which the conflict can be deemed to have ended. Second, this declaration may be read to confer only those powers already granted to the President, keeping in place all Congressional restrictions on his war power.

If we answer in the affirmative the question of whether Congressional intended to delegate its authority to the President, another question arises: is such delegation Constitutional? Does Congress have the Constitutional authority to vest its own rule-making authority in the Executive, even after it has made rules governing the situation at hand? While the jurisprudence on legislative delegation indicates significant power to delegate to the executive during wartime, most scholars agree that certain powers cannot be delegated, among them those listed in Article I, Section 8.

Finally, even if we conclude that Congress's full authority to make rules for prisoners of war has been granted to the President through a delegation of Congressional power that would pass Constitutional muster, we must ask one final question: are there rules and norms of international law or inherent laws of war that limit the power of the sovereign from committing certain acts in wartime, regardless of the Constitutional or democratic basis of his power? Precedent exists placing both Congress and the President under the authority of the law of nations, and specifically the jus belli, the law of war. Wartime jurisprudence suggests that the common law of war pre-exists and supercedes the specific provisions of the Constitution, creating default rules and laying down basic assumptions about allowable conduct for US military forces in wartime.

While each of these considerations in the chain of Constitutional authority casts serious doubt on the logic of the Yoo and Bybee memos, considering them each in isolation would risk falling into the same line of faulty and dangerous short-sightedness and blindness to context that characterized those memos in the first place. The reason those memos were able to arrive at their absurd results was because, in addition to ignoring parts of the legal record, they removed each question from the historical, social, and legal context in which it existed. When one examines the subject in its full context – social, political, historical, linguistic, philosophical, and legal – the manifest, obvious nature of the US ban on torture emerges from the fog of the Yoo memos. To do so is to examine the history surrounding the founding of the United States and the drafting of its Constitution, the stated goals and ideals of the Republic, and the philosophical and political ideas on which its authority rests. More importantly, it is to examine the thoughts and writings of individual men who shaped the foundational document of our country, and to ask what the document might have meant based on what they believed about war, politics, morality, and law.


The Historical Setting of the Constitution

The Constitution of the United States is based on a pre-existing set of laws in force in America at the time. Indeed, the document can only be seen as a set of modifications and clarifications of pre-existing legal and political norms already in place, as it hardly accounts for the endless possible permutations of political and legal action that might arise in the Republic. Thus, a meaningful reading of the Constitution is a historical one that incorporates its provisions into a pre-existing legal framework, woven together out of jurisprudence, custom, statutes, and international agreements.

First and foremost, the Articles of Confederation governed the independent states after the rebellion against Great Britain, and these Articles retained their force of law even after the ratification of the Constitution. The Articles provide a set of legal norms and rules that fill gaps in Constitutional doctrine; the Constitution only provides for those laws which the Framers saw as being necessary changes to the legal status quo. Calvin Johnsoniii has elucidated the historical continuity of the Articles and the Constitution, answering gaps in Constitutional jurisprudence with the observation that the Constitution was built on top of the Articles, not in place of them.

In the same way that the Articles of Confederation supplied a prelude and a set of default rules for the Constitution, the common law of war and of nations provided a set of default rules for the Articles, and for the Constitution after them. International law and wartime custom is frequently cited in war powers cases, particularly in the early Republic, and the judiciary shows little restraint in applying the restrictions of those laws to the actions of the executive. Although some scholars have argued that the only federal law is that codified in the Constitution and by US statutes, the operation of jus belli in American jurisprudence indicates otherwise. Indeed, if the only laws of war that apply to the US military are those passed by Congress, then those rules are nearly nonexistent, and courts asked to rule on military conduct would be faced with an impossible task of interpreting nonexistent rules. As Randolph Jonakaitiv has said of these detentions:


If courts decide that Congress authorized the detention of "enemy combatants" as authorized by the law of war, the courts will have to make zen-like decisions about how Congress has defined the law of war when Congress has not actually done so.”


Jus belli exists as common international law, and just as the United States and its constituent states incorporated English common law, so did the Constitution incorporate international jus belli into its framework. This is why the Paquete Habanav case, decided in 1900 during the Spanish-American War, demanded the return to Cuba of a fishing vessel seized by the Executive: “it is an established rule of international law that coast fishing vessels... are exempt from capture as prize of war.” If international law is binding on the Executive during war, then no legal analysis of executive detentions can ignore accepted practice of warfare according to the traditions and strictures of the jus belli, nor can it overlook the various treaties to which the US is a signatory state.

As important, if less definite in form, are the abstract, universal Natural laws that legitimized the American Revolution and the Republic born from it. The revolutionaries and Framers who founded the nation made explicit in their documents that the legal framework of the nation retained its force only so long as it stood in accord with universal principles of justice and human rights. For an articulation of these rights and principles, one need look no further than the words of the Founders themselves. The Declaration of Independence bases its complaint against George III entirely on universal principles of liberty and justice. Jefferson and the other Founders based their entire justification for Revolution, and for the political legitimacy of the new Republic, on the idea that they were following abstract, Platonic laws of morality. The idea was embedded in every sign and symbol of the Republic, from the Declaration of its Independence to the Constitution to the Great Seal of the United States. George Washington laid out extensive guidelines for the treatment of prisoners captured during the Revolution based on these principles. A student of the Stoics, Washington considered human dignity and liberty among the highest virtues, and he took pride in distinguishing the new Republic from the tyranny of George III in its treatment of prisoners: while the British made a practice of beating, torturing, and occasionally even slaughtering captured American rebels, Washington took pains to extend humane treatment even to hired mercenaries of the enemy and of tolerating no mistreatment of prisoners by his men.


The “Captures” Clause

What does this historical legal background mean for modern interpreters of the “capture” clause of Article I of the Constitution? What response to the assertion that the clause does not govern prisoners of war, but only enemy property? The legal precedents, though sparse, are unanimous in their definition of “captures” as encompassing both persons and property, and legal scholarship (Professor Yoo's excepted) accepts this definition without question. But the definition becomes self-evident when one examines the historical practices of war at the time of the writing of the Constitution, when “persons” and “property” were by no means separate concepts, particularly with respect to prisoners of war.

The primary Supreme Court reading of the Captures clause is Brown v. U.S. (1814), where Chief Justice Marshall makes clear the power of Congress to make rules for wartime captures of both people and property:


Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall chuse to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the Court. ...


That the declaration of war has only the effect of placing the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers; but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the enumeration of powers which accompanies that of declaring war. "Congress shall have power"--"to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." ...


The acts of congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory.


War gives an equal right over persons and property: and if its declaration is not considered as prescribing a law respecting the person of an enemy found in our country, neither does it prescribe a law for his property. The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.


The "act for the safe keeping and accommodation of prisoners of war," is of the same character.


(emphasis added)


The opinion says, in essence, that 1) Congress has the right to regulate captures during war, but not to ban them entirely; 2) that this authority covers both persons and property; 3) that the common law of war does not endow the President with inherent powers of capture until Congress defines the rules governing such captures; and 4) that Congressional statutes define the scope of Presidential capture power, and they define the limitations on that power by their silence in various domains.

Legal scholars seem to have no trouble agreeing on the applicability of the Captures clause to prisoners of war. Michael Dorf, writing in response to Yoo's memo and its argument for inherent executive authority over prisoners, says:


But the President's inherent authority in this area is only a default rule. The Constitution expressly grants to Congress the power to "make Rules concerning Captures on Land and Water." A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President's claim to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.vi


Other scholarship falls into this line of thought, as well, and even early American legal scholarship seems to agree on the applicability of the clause to enemy prisoners.vii

The history and custom of war acts as a third source of authority, underlining the incoherence of a legal distinction between persons and property captured in war. The practice of enslaving captured enemies in war dates back to the earliest civilizations, and it persisted into at least the medieval era in Europe and into the 18th Century in America. As late as 1760, the North Carolina legislature passed a law calling for the enslavement of Native Americans allied with the French during the French and Indian War.viii In the early nineteenth century, as much as half of the slave population in the Carolinas consisted of Native Americans, most of them captured as prisoners of war.ix Indeed, even the African slaves who were imported to the Colonies had been initially enslaved as prisoners of war by enemy tribes in their native lands. Capture or conquer during wartime has always been the primary method of erasing the distinction between people and property, and George Washington, a slaveholder and veteran of the French and Indian War, knew more than most about this than most.

This grouping together of persons and property in the context of wartime captures is illustrated perfectly by legislative history. On July 17, 1862, Congress passed an Act providing, among other things, for the treatment of captured Confederate property and slaves. They created a set of rules governing how the Executive might dispose of captured land and personal property, and they declared that captured slaves should be freed. Lincoln did, in fact, find Constitutional grounds for sending the bill back before ratifying it, but not on the grounds that Congress had no authority to make rules for captures of persons; rather, he asserted that permanent seizure of land from rebels might be an unconstitutional deprivation of the rights of their heirs. He eventually signed the bill, attaching a signing statement voicing his objections, and Congress incorporated his changes into a joint resolution interpreting the bill to fit his preferences.x Lincoln clearly recognized the authority of Congress to constrain his action in wartime concerning the treatment and disposition of prisoners; his attention to Constitutional issues found no fault with the rules concerning slaves, and Congress found it natural to group their rules for the capture of persons and of property into a single document.


Executive and Legislative War Powers

The balance of war powers between Congress and the President was one of the crucial debates of early American Constitutionalism. James Madison and Alexander Hamilton famously clashed on the subject, with Madison advocating limited, enumerated wartime powers for the Executive and Hamilton for more expansive discretion on the part of the President.xi Madison warned that “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”xii Hamilton's views eventually prevailed, however, and American war jurisprudence has conferred unenumerated, although not unlimited, powers upon the Executive during war.xiii

The current interplay between Executive and Legislative power during war is laid out in Youngstown Sheet & Tube Co. v. Sawyerxiv, which grants the President his own Constitutional war powers, plus or minus the powers of Congress depending on the degree to which Congress has expressed approval or disapproval of a specific course of action. The specific powers of Congress during wartime are those listed in the Constitution, including the power over captures and the power to declare war. Although Yoo and other scholars have pursued a theory of a “unitary executive” whose wartime powers are limited only by the Congressional spending power, the Constitution's other grants of wartime power to Congress – including the captures clause – clearly contradict such unlimited Executive war powers.xv It is difficult to imagine the Framers envisioning a scheme wherein a power-hungry Executive, engaged in an illegal war, could only be brought up short by Congress de-funding the conflict and leaving American troops stranded in the field. Given the attention to checks and balances everywhere else in the Constitution, attributing the “unitary executive” theory to its writers strains credulity.

The consensus among mainstream legal scholars, and the theory that squares with the rest of the historical record and the rest of the Constitution's political philosophy, is that the Executive is given unenumerated powers and broad discretion during war only once such a war has been declared by Congress; that Congress makes the rules for those wartime activities designated to it in the Constitution; and that these powers of declaration and wartime rule-making are non-delegable. Kim Scheppelle has argued that Congress's war powers greatly exceed those of the President, pointing out the Founders' recognition of the risk of tyranny and arguing that the Constitutional framework they designed is incompatible with Carl Schmidt's theory of a “state of exception”, declared by the sovereign, wherein laws cease to apply.xvi Keeping in mind Washington's attention to wartime tradition and to the universal humanitarian laws espoused in the Declaration of Independence, it is difficult to reconcile the Founders' aims with the idea of unlimited power vested in one man to disregard laws, positive or natural, in wartime. The Prize Casesxvii, a series of ship seizure cases during the Civil War, softened the declaration requirement in cases of active hostilities in a civil war, but they affirmed the force of Congressional captures rules as well as the applicability of jus belli in constraining Executive action as Command in Chief of the military. They also made clear the non-delegable nature of Congress's war powers: "to put the country in a state of war... the Constitution confided that case to Congress, as exclusively and without powers of delegation". Marshall's articulation of Legislative and Executive war powers in Brown v. U.S. leaves little room for doubt that Executive action in war is heavily constrained by Congressional rules, not just its power of the purse: “The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.”

Thus, there is little reason to question the broad consensus granting Congress significant control over Executive action during war, not only through its control of funding, but also through its rule-making authority and its ability to declare war. The capture clause is a legal restraint on Executive action, even after Congress has declared war, and the delegation of such rule-making authority to the Executive would raise serious Constitutional issues. The question then arises: what has Congress authorized?


Congressional Authorization for Executive Captures

The current military conflicts in Iraq and Afghanistan were set in motion by a declaration by Congress authorizing the President to use military force. Issued one week after the attacks of September 11, 2001, it states in relevant part:


That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


The Administration has repeatedly cited this as a declaration of war; specifically, their “War on Terror”, which they claim to have Congressional authorization to prosecute against unnamed enemies for an indefinite period of time. Indeed, an imaginative reading of the Authorization for Use of Military Force (AUMF) yields exactly this interpretation. But is Congress really authorized to declare such a war? Did the Framers really intend for Congress to be able to abdicate all involvement in wartime affairs forever, leaving the Executive with unlimited power only checked by the electoral process? Again, their attention elsewhere to the importance of checks and balances in government render this conclusion absurd. Yet, in a phone interview with Jane Mayer from the New Yorker, Yoo claimed that the 2004 election had been the only check on Bush's wartime powers, constituting a “referendum” on his conduct.xviii Mayer also documents Yoo's dismissal of Youngstown, the prevailing standard for legislative and executive power balance in war, as inapplicable to the present conflict because it didn't apply to events in the theater of combat, and the theater of combat in the current conflict includes the United States.xix

Given what we know of the Framers - their ideology and aims, as well as the historical reality in which they lived – we can safely dismiss this last claim of Yoo's as a tactic of desperation in trying to justify his memos. So assuming that Youngstown hasn't been overruled by some Congressional declaration of a universal, worldwide, perpetual war granting the President the unlimited powers of a despot, we must ask: what has Congress authorized the President to do? And also: what is Congress allowed to authorize the President to do? In keeping with standard practices of statutory interpretation, we must construe the provisions of the 2001 AUMF to accord with the Constitution, and Constitutional jurisprudence is straightforward on the non-delegability of Congressional rule-making authority and of the power to declare war. Scholars have called the AUMF an unconstitutional “witch-hunt” that violates the Youngstown non-delegation rule in granting undefined powers to the Executive and abdicates Congressional duties to make rules for captures.xx But if we read the AUMF as necessarily limited by Congress's Constitutionally-defined duties and by the rules they have already promulgated concerning captures, then the declaration begins to appear much more limited in scope than Yoo's interpretation. This version of the AUMF, interpreted to pass Constitutional muster, reads simply as a declaration of war – against whom and for how long being admittedly tricky questions – that preserves all normal constraints on Executive action from previous conflicts. Thus, Congressional statutes and treaties still limit the powers of the war President, as do international law and jus belli. The broadness of the AUMF's language, giving the President discretion to define the enemy (“... against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks...”), must be read as narrowly as possible: as a tentative grant to initiate hostilities against as-yet-unnamed terrorists, but preserving the ability of Congress to overrule the President's determination. “All necessary and appropriate force” must be similarly narrowly construed: it must preserve Congress's own rule-making authority, constraining the definition of “necessary and appropriate” to a subset of actions falling within the legal constraints of US law and treaties.

What, then, are the relevant laws that constrain the President's actions in this conflict? Congress has signed a number of international agreements governing the treatment of prisoners, and it has implemented those treaties with statutes that have full binding effect on the President. Congress has also passed statutes independent of its international obligations that bear on the issue of detainee treatment. Finally, the common law of nations has the force of law in the US under Paquete Habana, and courts should enforce basic principles of jus belli and other international norms against Executive action in war.

The earliest coherent codification of the law of war in America was the Lieber Code, adopted by Lincoln in 1863 and promulgated through the military as General Order 100. Article 16 of the Code states: "Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.” Although never codified by Congress, the Code nevertheless went on to form the basis for international conventions on the law of war.

The Hague Conventions of 1899 and 1907, largely initiated by the United States, bluntly state the main requirement for capture of prisoners of war - “They must be humanely treated” - and then go on to detail what kinds of treatment they are to be afforded.xxi They use a broad definition of “prisoner of war” including not just regular army members but also war reporters and other civilians accompanying an armed foreign force.

The Third Geneva Convention, adopted by the United States in 1929, lays out extensive rules for the humane treatment of prisoners. The Fourth Convention, adopted in 1949, reflects large portions of the 1907 Hague Convention in its rules for humane treatment of civilians in war zones. Congress implemented these treaties as the Uniform Code of Military Justice in 1950, providing specific rules against the inhumane treatment of prisonersxxii:


893. ART. 93. CRUELTY AND MALTREATMENT


Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.


The UCMJ also has provisions against indecent acts, assault, and a range of other crimes that apply to conduct toward prisoners.xxiii

In 1994, Congress signed the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They then implemented the treaty, also in 1994, in the anti-torture statute (18 U.S.C. § 2340A). The statute provides criminal penalties for torturers, and adopts a broad definition of torture (“severe pain or suffering, whether physical or mental”). The President, in signing the statute, accompanied it with a signing statement that interpreted “severe pain or suffering” very narrowly, and Yoo relies heavily on this signing statement in his legal analysis. Such signing statements have questionable validity, although many have been issued in US history; recall Lincoln's comments on the 1862 Act governing confiscation of rebel property. Regardless of whether this signing statement has any legal authority, however, it is clear that the ban on torture is US law to which the President is beholden and which, indeed, he is obligated to enforce.


Conclusion

Several constraints operate upon the President's war powers. First and foremost is the Constitution's careful balancing of powers among the different branches of government, placing Congress's war powers above those of the President and allowing the Executive full discretion in war only within the parameters – when war exists, and what rules govern it – set by the Legislature. Executive power is also constrained by treaties to which the United States is a party, and by customary international law. These limitations on the Presidents war powers were deliberately included in the Constitutional scheme by its writers, who hoped to distinguish the Republic from the tyranny of despotic rule against which they were rebelling. They had seen the power of an unchecked executive, and they had seen the atrocities that arose from warfare unconstrained by universal principles of honor and humanity. They were careful to avoid such dangers in their design.

The United States has always led the world in the humane treatment of prisoners of war. After pioneering international standards for ethical rules of warfare and for the treatment of prisoners, both military and civilian, the United States has recently shed its dearly won reputation and integrity by rationalizing torture through a series of transparently invented legal theories. These theories will find themselves, sooner or later, running up against legal reality when the courts begin to apply the statutes and treaties that Congress has ratified to implement its Constitutional rule-making authority for armed conflicts. Congress's responsibility to make rules regarding captures has been fulfilled through their adoption of anti-torture provisions again and again, and the applicability of that authority to the present conflict finds support again and again from historical and legal precedent. Eventually, the Executive will find itself answerable for its violation of Congress's laws, and for its violation of the laws that predate the Constitution and upon which it was founded. The United States articulated by the Founders – the one that derives its legitimacy, not from a written Constitution, but from universal principles of liberty – will eventually identify its enemies and remove them from power. Faith in that outcome was expressed in 1777 by John Adams in a letter to his wife, wherein he said, “I know of no policy, God is my witness, but this Piety, Humanity and Honesty are the best Policy. Blasphemy, Cruelty and Villainy have prevailed and may again. But they won't prevail against America, in this Contest, because I find the more of them are employed, the less they succeed.”




iScherer, Michael & Benjamin, Mark. “What Rumsfeld Knew”, Salon, April 14, 2006.

iiAuthorization for Use of Military Force, September 18, 2001. Public Law 107-40 [S. J. RES. 23]

iiiJohnson, Calvin, "Homage to Clio: The Historical Continuity From The Articles of Confederation Into The Constitution", 20 Const. Commentary 463 (Winter 2003-2004)

ivJonakait, Randolph, "Rasul v. Bush: Unanswered Questions", 13 Wm. & Mary Bill of Rts. J. 1129 (April 2005)

vThe Paqueta Habana et al. (1900), 175 U.S. 677

viDorf, Michael. “What are the 'Inherent' Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights”, at http://writ.news.findlaw.com/dorf/20060213.html (last checked 4/29/06)

viiPomeroy, John. An Introduction to the Constitutional Law of the United States Especially Designed for Students, General and Professional. (7th Ed., 1883):


§ 456. Congress may, therefore, make rules concerning the disposition of all things taken, seized, captured by the national forces of every description. And this includes a vast array, both in number and magnitude, of special objects to which the legislative power may be directed. Under the clause in question, Congress can pass statutes providing for the disposition of enemies' or neutral ships and goods taken at sea, while violating belligerent rights, — the entire code of prize regulations, for the disposition of public and private property of the enemy taken on land; for the disposition of the persons of enemies taken prisoners; and, doubtless, for the disposition of enemies' territory conquered and held by a victorious army, except so far as this power may be controlled by the higher function of treaty-making, held by the President and Senate.


(emphasis added)

viii“NC Museum of History – North Carolina American Indian History Timeline”, at http://ncmuseumofhistory.org/nchh/amerindian.html (last checked 4/29/06)

ixBecker, Eddie, “Chronology on the History of Slavery, 1619 to 1789”, at http://www.innercity.org/holt/slavechron.html. (last checked 4/29/06)

xMiller v. United States (1870), 78 U.S. 268; Act of July 17, 1862, Sec. Sec. 13

xiTorruella, Juan, "On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power", 4 U. Pa. J. Const. L. 648 (May 2002)

xiiJames Madison to Thomas Jefferson, 2 Apr. 1798. Writings 6:312—14, at http://press-pubs.uchicago.edu/founders/documents/a1_8_11s8.html

xiiiMyers v. United States (1926), 272 U.S. 52

xivYoungstown Co. v. Sawyer (1952), 343 U.S. 579 (1952)

xv Scheppelle, Kim, "States of Exception and the Temptations of 9/11", 6 U. Pa. J. const. L. 1001 (May 2004)

xviTorruella, supra; Myers v. United States, supra

xviiThe Brig Amy Warwick et al. (The “Prize Cases”) (1862), 67 U.S. 635

xviiiMayer, Jane. “Outsourcing Torture: The secret history of America’s 'extraordinary rendition' program”, The New Yorker, February 2005

xixMayer, Jane. “The Memo: How an internal effort to ban the abuse and torture of detainees was thwarted”, The New Yorker, February 2006

xxTobias, Carl, "Punishment and the War on Terrorism", 6 U. Pa. J. Const. L. 1116 (May 2004); Jonakait, supra.

xxiAnnex to the Hague Convention: REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND, Section I, Chapter 1, Article 1

xxii10 USC §893, UCMJ Article 93

xxiii10 USC §877 et seq., UCMJ Articles 77-134

11


US v. Naughton: One-Off Criminal "Fantasy Defense", or Turning Point for the Jurisprudence of Online Identity? 

In 2000, Patrick Naughton, vice president of Internet search company Infoseek, was arrested for traveling across state lines with the intent to have sex with a minor. He had corresponded extensively with an FBI agent impersonating a 13-year-old girl in an AOL chatroom and had made plans to meet her and have sex. When he showed up, the FBI arrested and charged him.

At his criminal trial, Naughton employed what has come to be known as the "fantasy defense": citing his technical sophistication and the adult tone of his interlocutor's conversation, he claimed that he believed her to be an adult woman playing the role of a teenage girl... which, indeed, she was, although for different reasons from those Naughton claimed to have believed.

The defense managed to hang a jury, resulting in a retrial. Naughton pled guilty the second time around and took a reduced sentence, serving no prison time. [1]

I think this more than just a story about slick trial lawyer tricks. Naughton's case might be remembered primarily as a tortured application of the reasonable doubt standard, like the O.J. Simpson trial, or a wacky legal theory like the Twinky Defense, but it might also say something more profound about changing social and legal attitudes toward the perception and performance of online identity. Naughton claimed that what he perceived and participated in in that chat room was not a straightforward exchange of truthful personal information, but a ritualized sexual role-playing exercise conducted using masks and alter egos. He convinced half of a jury that, first of all, only an unsophisticated Internet user would trust someone else's assertion of real-world identity without some way of authenticating it, and second, that adopting an false online persona is a common practice in chatrooms.

Since 2000, a lot of things have changed. There are a lot of people in this country who know as much or more about Internet culture and technology as Patrick Naughton did in 2000. Does this mean that it's reasonable to expect skepticism about anyone's unauthenticated assertion of identity online? If such a theory were successfully used today, it might spell big changes for online defamation and fraud. But it might also signal an impending clampdown on online anonymity.

----

The performance of online identity has been tackled by psychologists and technologists [2], but not so much by legal scholars. The disconnect between what is stated and what is understood has long been a distinctive feature of online culture. Chatroom participants adopt imaginary personae. Parody websites adopt outrageous political positions and revel in the ensuing hate mail from "clueless" visitors. Blogs and Friendster profiles are maintained in the name of famous or fictional characters. Email hoaxes and April Fools jokes gone wrong circulate endlessly through the mail exchanges of the net. Recognition of the malleable, performative nature of online identity would clear up some of the legal absurdity surrounding defamation and unfair competition cases based on casual or facetious online speech.

But this disconnect between actual and performed identity also has what the New York Times would call its "sinister" side. Phishing, fraudulent personal ads, system cracking, and anonymous harassment are all as serious online as are offline con games, fraud, trespassing and stalking. On the Internet, no one knows you're a dog... or an FBI agent, or an eBay customer service representative asking for a user's password. Seasoned users take this uncertainty for granted and manage their trust accordingly.

But as newer users become more sophisticated and begin to understand the unstable nature of online identity, they may, paradoxically, develop anxieties about the inapplicability of their realspace intuitions to social interaction on the Net. If the legal system begins to see reliance on someone's online representations as unreasonable, businesses and individuals may react badly. Fear of fraud and impersonation could trigger a demand for reliable online identity authentication systems. Which, in and of themselves, might not be a bad idea, as long as they use decentralized, user-controlled, open-standard technologies like PGP or OpenID [3]. But another scenario goes like this:

1. Users flip out over unverifiable online personae.

2. Microsoft and AOL revive their identity-management systems "Hailstorm" and "Magic Carpet" [4] (has anyone heard anything about either of these in the past five years?), and Google and Yahoo join in with their own Mail/Calendar/Chat/Phone/WiFi centralized accounts. MySpace, Amazon, and everybody else try to jump on the bandwagon.

3. Incompatible standards lead to consolidation of these systems into one or two proprietary standards.

4. People start emailing, chatting, and shopping using secure, authenticated channels.

5. People's web browsers broadcast their authenticated identity information by default, keeping them logged into all their personal accounts at all the websites they visit.

At this stage, problems begin to arise:

6. The owners of these systems have perfect control, not only over everyone's personal information, but over their purchasing power, and they leverage that control to make cutthroat deals with merchants and media outlets.

7. The Net starts to balkanize as individual website operators make exclusive deals with one identity manager or another and sites begin to refuse access to anyone without an authenticated identity.

8. Online anonymity becomes an anomalous, conspicuous, and largely unworkable condition.

9. Online commercial activity become impossible without an account on one of these systems.

10. 1984 and the Book of Revelation act themselves out simultaneously.

----

This sounds like an unlikely set of consequences for a case that was decided six years ago and has garnered little attention since. But the identity-management wars have come close to boiling over periodically over the last six years, and Google's strong entry into the space, combined with the emergence of a new legal standard for reasonable care online, could spark a desperate grab for users by the handful of major players in online identity management. It would be a winner-take-all game, and the Internet - and society - that emerged might not look very familiar or comforting.

[There, how's THAT for Internet alarmism? New York Times, eat your heart out.]

----

[1] US v. Naughton: http://www.cbsnews.com/stories/2000/05/24/eveningnews/main199192.shtml

[2] Sherry Turkle is a pioneer in this field (http://en.wikipedia.org/wiki/Sherry_Turkle), but Judith Donath's stuff is more sophisticated and a better read (http://smg.media.mit.edu/people/Judith/). See, e.g., http://smg.media.mit.edu/people/Judith/Identity/IdentityDeception.html

[3] OpenID: http://openid.net/

[4] Hailstorm and Magic Carpet: http://www.betanews.com/article.php3?sid=995975421

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