Tag Archives: Executive Power

Presidential authority, unilateral action, recess appointments, executive orders, administrative agencies, and the structural tensions between executive capacity and democratic accountability.

Unraveling Miranda: Was Dzhokhar Told of the Public Safety Exception?

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In light of this week’s horrific series of events in Boston, I (and many others) have been thinking a lot about what exactly the “Miranda warning”—or more specifically, “being Mirandized”—means.  There are a lot of angles to this, and I will focus on only one. In the interest of full disclosure, I believe that the bar should be set incredibly high for the state, and I support Mirandizing individuals in all circumstances.  (Furthermore, I believe this because I believe that the state properly possesses police powers.  But that’s a different post.)

[Note. Thanks to John Kastellec for very helpfully pointing out that this is actually a current issue before the Court (in another case).  The NYTimes has an editorial on the issue, too. ]

So, much debate has occurred about whether one possesses the “Miranda rights” prior to being Mirandized.  My understanding is that the rights described in the warning are always possessed, and so I will assume this in what follows.  This is not only because I believe this to be the case, but also because assuming otherwise makes the strategic implications of giving or not giving the warning much more powerful and concomitantly less interesting.

Of course, as many have said, it is hard to imagine that anyone does not know their Miranda rights given the fame of the case and the warning’s high profile usage on crime drama shows.  On the other hand, some have pointed out that in times of high stress, individuals do crazy things and/or forget well-known ones.

That said, I want to focus on a potential importance of the issuance of the Miranda warning as a focal point.  It provides a focal point for all people, many of whom may or may not be sure of their ultimate legal liability, to “pool” by shutting/”lawyering” up.  Summarizing the argument below, the “Miranda warning” is equivalent to a publicly known signal of “we’re about to question you with intent to convict you.”  According to this argument, the warning’s importance is not for the defendant in question, but rather for the non-defendants of the future. (This sets aside another very cogent argument that Miranda warnings help remind the police themselves to mind their p’s and q’s, a social good in multiple ways.)

The basic idea of my unraveling argument is this: suppose that every question the police ask you has a probability p>0 of making you recognize some fact that, for simplicity, will implicate you with probability q>0.  (We all have this positive probability, right?)*

If p=1, then Miranda makes no difference.  However, for most/all people, p<1.  Now, suppose that police just start questioning.  Furthermore, suppose that everybody follows the following strategy: answer questions until you suspect that the question might be self-incriminating.  Should you follow that strategy, too?  Be honest until you fear that you shouldn’t answer that question?

Uh-oh.  What should the police infer when you stop answering questions?  Well, obviously they should infer that something in that question they just asked suggested some fact that you believe might incriminate you in a crime/legal quandry.  So, you should stop answering earlier than this point. Of course, you have to do this before “the question in question,” so a simple line of thought points out that, if everyone plays the “answer as long as it seems safe” strategy, YOU should just refuse to answer any questions even before they are asked.

Taken at face value, that “unraveling argument” suggests that Miranda is unnecessary.  Everybody should just lawyer up.  But…we don’t (or shouldn’t) like that world: nobody ever cooperates with police, regardless of p<1 and q>0.  That is, even if the police were asking me innocently if I saw the school bus drive past my house earlier than usual today, I should most definitely stop them at “did you see…” with a “TALK TO MY LAWYER.”

Instead, we would prefer a world that, for sufficiently small q—i.e., worlds where we are very very unlikely to have done anything wrong, people can answer the police’s questions without fear.

THAT’S WHAT MIRANDA DOES: IT TELLS YOU WHEN YOU MIGHT BE IN TROUBLE.  The essence of Miranda is that the police can use spontaneous confessions, etc., but if they bring you into custody and interrogate you with the idea of getting information with which to potentially convict you, they must give you the warning first.  Think of this, for simplicity, as the court saying to police: “if YOU think that q is pretty high—high enough to warrant putting an individual into custody and interrogating them—then you have to offer them the opportunity to stop the questioning before it begins.”

The unraveling argument suggests why, while it might or might not be important to give the Miranda warning per se to Dzhokhar Tsarnaev, it is arguably very important that they at least be required to tell them that they are not giving him the warning.  That is, they notified the people of “the public safety exception.”  They should notify him as well.

Note, even more importantly, that this is not a “defendant-based” civil liberties argument.  That is, this is not about protecting Tsarnaev from self-incrimination.  Rather, it is an argument that, if the police don’t have to do this, then police will be less effective at protecting us because we will all have reason to always decline to answer questions in future situations.

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A side note here: though the 5th Amendment protects one against self-incriminating testimony on the stand, it does not protect you against the police from using your taking the 5th Amendment as a signal as to what/where they should investigate.  In other words (as I understand it), the 5th Amendment is applicable only if the facts at hand would actually incriminate oneself, and therefore is truly applicable only if you actually did something for which you might be punished (or have good reason to believe so).  This is a big difference than Miranda rights, which are ex ante, rather than ex post, rights accorded to all citizens regardless of their legal liability.

Now, I’ll Show You Mine: Why Obama Budged A Bit on the Budget

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President Obama proposed his 2014 budget this week.  A huge document, it contains a number of interesting policy proposals.  One that is attracting a lot of attention concerns the “chained CPI.” In a nutshell, this change will reduce the rate of growth in social security payments over the next decade.  Overall, the proposal arguably represents a compromise with Congressional Republicans.  Perhaps understandably (although this is a classic chicken-egg situation), some Congressional Democrats and liberal interest groups are outraged. Did Obama overreach?  Has he sold out his party? To both questions, I argue “no,” and I also assert that, while Obama may be a pragmatist, this proposal isn’t a fair-minded compromise with the GOP.  It’s far more aggressive than that and positioned for the 2014 elections.

From a strategic standpoint, Obama is in an interesting situation.  He’s a lame duck president with a receding mandate and an approaching midterm election.  I think he has policy/legacy motivations to drive him to do more in his second term than most (all?) two-term presidents.  Accomplishing this would be greatly assisted by the Democrats doing well in the 2014 midterm elections.  (And, of course, he might want such a thing either on partisan or personal grounds, too.)

Going into 2014, the Democrats are in a tough situation in the Senate and a long-shot in the House. So how does Obama’s proposal affect this?  Not much in the grand sense, of course, because budget proposals are “inside baseball” for the most part and it seems unlikely (to me at least) that the public will buy into the narrative that “Obama is attacking Seniors.”

However, Obama’s proposal puts the House GOP in a bind and, by extension, potentially presents Senators of both parties with a challenge.  On the one hand, the House GOP can not simply “sign off” on Obama’s budget: for one, it raises taxes and, two, it’s Obama’s budget.  In taking a stand against his budget, though, the House GOP must come up with a reason.  While Boehner can try to claim that the proposal is incremental and doesn’t go far enough with respect to entitlement reform, this approach forces the GOP to come up with an even more aggressive plan or keep pushing the Ryan plan. Given the public’s lack of support for cutting social security, and the fact that Social Security is technically “off budget” and therefore of little value in reducing the budget deficit in the short term, it’s not clear to me what the GOP can counter with in terms of spending.  (And, of course, I wrote about this last year: there’s almost no way to balance the budget without new revenues or dramatically shrinking the defense budget.)

One way to view this is that Obama has “caved” to GOP demands and that this is another example of Obama not realizing that Congressional Republicans can not be dealt with.  Somewhat ironically, Obama’s very public and tangible concessions (even if “incremental”) are arguably the strongest positive bargaining move he has made in recent years. The key words here, and the “math of politics” of this post, are public and tangible.  By going public with a specific proposal, Obama is framing the next stage of the budget process. He is putting the spotlight on the Republicans and thereby calling their bluff that they have a politically feasible budget plan. (It’s a dual version of the logic I sketched out during Boehner’s stratagem during the fiscal cliff showdown.)

It is important to note that Obama’s budget was two months late.  He waited until after sequestration hit, after the House and Senate each passed their own budget resolutions.  In a colloquial sense, this forces the House GOP to respond to his proposal, as opposed to the Senate’s.

By going public (as opposed to privately bargaining with Boehner), Obama imposes “audience costs” on both himself and the House GOP.  For Obama, he would face a potentially huge cost if his budget was approved and sent to his desk for his signature.  (This isn’t going to happen, but a partial version could.) For the House GOP, of course, it now has the public’s attention on their budget priorities again.  That hasn’t worked out so well in the past.

By being tangible (i.e., by including the specific, headline garnering proposal regarding Social Security), Obama has arguably placed himself as the compromiser.  More importantly, Obama’s proposal presents Congressional Democrats with a useful foil and “clear indicator” of the importance of the 2014 elections.  Key here from Obama’s perspective is that he’s a lame duck president: if he has policy goals, he can be less concerned with maintaining his short-term popularity.  He can also turn to his partisan base and say (truthfully, in my opinion): “if you want Democratic priorities to win, you need to give me—and you—a Democratic House.  More importantly, perhaps, you better be darned sure the Democrats hold onto the Senate.”

With that, I think of the President of the Senate, and leave you with this.

Who Has A Secret List and Flies Around The World With Gifts?

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I have to be honest—I don’t actually know the criteria for being classified as naughty or nice by Santa.  I also don’t know how I would find out.  I do know that he flies around the world giving out “incentives” once a year.

…It turns out that the Obama Administration is stealing a page from Santa’s playbook and, in good American fashion, MAKING IT YEAR-ROUND.

 

The big news this week is the new revelation of a policy paper (i.e., “white paper”) that (sort of) discusses the justification for killing American citizens who are deemed to be high level officials in Al Qaeda and affiliated groups.  There are many problems and dilemmas in this hornet’s nest, and (surprise!) I am not a fan of the policy.  (And, to be absolutely clear, I have yet to hear even an imaginably compelling argument for why the justification for the policy should be kept secret.) However, I will focus on one of these dilemmas, jointly contained within the reasoning of the policy paper and the Obama Administration’s policy that the kill list be kept secret.

In a nutshell, white paper argues that an American citizen’s due process rights (c.f. the 4th and 5th Amendments of the US Constitution) are counter-weighed by the collective security interests of society when 3 criteria are satisfied:

  1. An informed, high-level official of the U.S. government has determined that the targeted individual poses and imminent threat of violent attack against the United States;
  2. A capture operation would be infeasible and those conducting the operation continue to monitor whether capture becomes feasible; and
  3. The operation (i.e., killing the individual) is conducted consistent with applicable law of war principles.  (In this context, this basically means you must accept a surrender by the target if offered and you shouldn’t obliterate a whole village of innocents to eliminate the target.)

Some have focused on the memo’s somewhat tortured (re)definition of the word “imminent” in justifying why it is legitimate to kill someone who, in theory, could be (temporally) intercepted prior to the actual event.  I don’t have a problem with this definition for a number of reasons.  Like obscenity, I think imminence is something that you know when you see it (or, perhaps, right before you “saw it”).  We wouldn’t ask a law enforcement official to wait to shoot a suspect until the suspect’s finger was actually pulling the trigger, would we?  Of course, we wouldn’t countenance that officer shooting someone just because the suspect has a gun in his or her car. It’s a classic example of the type of gray area that is referred to as residual discretion and my coauthor and co-conspirator Sean Gailmard and I have argued that interpreting how best to use such discretion is generally best left in the hands of the individual tasked with its use.

Setting that important point to the side, however, I believe in this case that an even more important point is the conflict between the definition of imminence and the secrecy of the kill list.

A sine qua non of due process is notification of charges and the ability to challenge their validity.  From a practical standpoint, due process is designed to correct errors.  From a normative standpoint, due process is designed to prevent irreversible errors. Both motivations apply in this case.

The starting premises of the policy paper are

  1. an official has made an official determination that
    1. the suspect is a high-ranking official of Al Qaeda and
    2. capture of the suspect is infeasible.

Suppose now that the suspect’s name is included on a public list (much like the “most wanted list”).  Two things happen simultaneously:

  1. the suspect (in theory, which is what matters) knows that he or she must turn themselves in to avoid possibly being blown up by a drone, and
  2. other individuals know the same thing.

The first point (which is another instance of a take-it-or-leave-it bargaining game: turn yourself in or we’ll blow you up) is relevant for due process: it is the basis of “being served” a subpoena (“under penalty”).  Put another way, how do we know that we are truly incapable of capturing the suspect until we at least theoretically give him or her the chance to surrender?

Claims that publishing such a list might expose our intelligence methods, make the suspect go into hiding, etc., miss the mark.  In addition to the direct ex post (corrective) effects discussed above, due process requirements are socially beneficial precisely because they are costly—knowledge that these requirements must be satisfied force the agents of the government (who, for example, can face individual liability when they circumvent such requirements) to take greater care in collecting and analyzing evidence.  Put another way, this type of argument boils down to the claim that due process requirements help criminals get away with it.  Accordingly, think for a second about setting aside the right to appeal in capital cases.  The difference is only one of degree.

Similarly, responding that “the suspect should know that he or she has this opportunity because they are actively engaged in open conflict with the US” has no purchase in refuting this, because either

  1. the suspect knows that the US government knows this, in which case there is no harm in informing the suspect that he or she has “one last chance” to surrender, or
  2. the suspect does not know the US government knows this, in which case the due process concerns are relevant, because this opens the possibility that the “informed, high-ranking official’s” determination is incorrect.

The second point (informing others about the inclusion of the suspect on “the list”) clearly has good impacts in various ways: maybe somebody will turn the suspect in for a reward, maybe it will make other neutral or enemy individuals less interested in hanging out/collaborating with the suspect (i.e., “drone magnet”), etc.

A final point is in order here: a grander concept of due process, extending beyond the potential salubrious informational and welfare impacts of process, is that of being governed by laws and not individuals.  This policy, particularly given the claims that the basis of the policy must and should be kept secret, is directly and incontrovertibly at odds with this concept.

Neither conspiracy theories nor quasi-paranoid slippery slope arguments are required to justify thinking this is a big deal.  In a very important way that seems circular because it encompasses both signaling and coordination games, transparency is important because it is important.  Claiming the authority to withhold the legal justification of a government policy is a clear transgression of a basic principle of democratic governance.  Politicians of both parties have done it, and each and every one of those politicians should be ashamed.

With that, I leave you with this.

The Recesses of Recess

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A federal appeals court has ruled invalid the three recess appointments to the National Labor Relations Board President Obama made on Jan. 4, 2012. (My birthday, as it so happens.) The basics of the situation are pretty well known.  During this time period, the Senate was holding pro forma sessions during which almost no members were present.  The court ruled that these sessions implied that the Senate was not in recess, implying that the recess appointments clause (Article II, Section 2, clause 3) of the Constitution does not apply.  One can certainly debate whether the court’s reasoning is correct, but that’s not my goal here.

Rather, I just wanted to point out an interesting aspect of this scenario.  In 2012, the Democratic party held a majority of the seats in the Senate.  Accordingly, it seems reasonable to think that President Obama’s nominees would have been confirmed if the Senate had voted on them.  They did not vote on them at least partly because there weren’t enough votes (60) to invoke cloture on their consideration.  (I say partly because cloture is a costly process, so I don’t want to imply that cloture would have been invoked on these appointments even if the Democrats did have “the votes.”)

A motion to adjourn requires only a majority vote in the Senate and, more importantly, is not  subject to debate (so it can’t be filibustered).  Accordingly, viewed within the Senate rules, a “weak confirmation option” is available to the majority party: if a nomination is being (or will be) filistered by the minority, the majority could just adjourn and let the president fill the positions (albeit temporarily) with the recess appointment power.  (Of course, this comes with the concomitant risk that the president might similarly fill other positions at the same time, but let’s set that aside.)

In the case at hand, the Senate did not do this.  Instead, it was operating under a unanimous consent agreement that called for the Senate to hold pro forma sessions every third day.  At least part of the reason it did this is the requirement (Article I, Section 5, clause 4) that neither chamber recess more than 3 days without the permission of the other.  (Which, to be honest, is a bit of an odd requirement in a number of ways.)

Thus, to the degree that a Senate’s “recess” must be longer then 3 days to trigger the president’s recess appointment powers, the filibuster and Article I, Section 5, clause 4 of the Constitution combine to give the House of Representatives the power to stymie the president’s ability to fill positions that require the advice and consent of the Senate.  Of course, the Senate’s difficulty in this regard is self-imposed (i.e., its self-imposed supermajority requirement to end debate), but I’ll leave that well-worn topic for another day.

In concluding, I leave you with this.