By **Michael Avery**
On June 15, my colleague Allison Trzop and I were lucky enough to attend a most remarkable event, a reading of large sections of Shakespeare’s Henry V by a group of distinguished lawyers and judges. The evening was sponsored by the Federalist Society’s Boston Lawyers Chapter and the Commonwealth Shakespeare Company, and hosted by George Bush’s former Chief of Staff, Andrew Card. After the lively reading, we were treated to a fascinating panel discussion with Bernard Dobski, an expert on Shakespearean politics; John Yoo, former deputy assistant attorney general in the Office of Legal Counsel (OLC) of the U.S. Department of Justice, where he worked on national security and terrorism after 9/11; and Michael Avery, a professor at Suffolk University Law School, the author of numerous articles as well as editor and co-author of several books on civil rights law and evidence. We managed to persuade Prof. Avery to allow us to post his opening remarks. You might want to take a quick look at the play, just to refresh your memory.
Good evening. I would like to thank Daniel Kelly and the Federalist Society for inviting me to this very interesting event, and for giving me an opportunity to speak about the contemporary relevance of some of the themes addressed in Henry V. I respect the fact that the Federalist Society frequently invites some of us from the left side of the aisle to share our perspective with you. I will try to honor that by speaking as plainly and candidly as Montjoy does to the King.
Wouldn’t it be interesting if we had the Bard himself to write a new play about war during the time of George II? He might begin, as he does in Henry V, with the concern for a just war. Imagine Colin Powell before the U.N. channeling Lord Canterbury. The non-existent weapons of mass destruction and the undocumented argument that the secular Saddam Hussein was a supporter of the fundamentalist al-Qaeda lend themselves to a rhetorical display as mesmerizing as Canterbury’s rehearsal of the French succession in the light of the Salic law.
bq. I suggest, war is war. If you make war on the Constitution, you are as accountable as if you make war on the country.
“Right and conscience,” however, do not a war make. Henry had to rally the nobles and the commoners to fight for him, and George had two presumably co-equal branches of government to contend with. Henry solved his problems with a thrilling “once more unto the breach” and St. Crispin’s Day rhetoric, and the helpful understanding that his soldiers could retain any ransom they would collect when their prisoners were returned to their French relatives. George solved his with the theory of the unitary executive, and the helpful understanding that Halliburton and Bechtel would get lucrative no-bid contracts in the countries we invade.
Just as Canterbury and Ely schemed to embolden Henry, the Justice Department’s Office of Legal Counsel labored to embolden George. Key elements of their advice to the president included:
•The president is solely responsible for the conduct of war.
•The war powers of the president include domestic military operations designed to deter and prevent further terrorist attacks, including intelligence gathering.
•The Fourth and Fifth Amendments do not apply to domestic military operations, including warrantless electronic surveillance. Nor is the president constrained by the Foreign Intelligence Surveillance Act with respect to warrantless electronic surveillance.
•Neither the Geneva Conventions nor the Torture Conventions forbade our transfer of Taliban or al-Qaeda prisoners to other countries, such as in the extraordinary rendition program. Even if those treaties applied to the current conflicts, they would not constrain the president’s constitutional authority as commander in chief.
•Neither the Torture Conventions nor domestic laws enacted by Congress could constitutionally constrain the interrogation of enemy combatants pursuant to the president’s commander in chief powers. Mr. Yoo wrote, for example, “any effort by Congress to regulate the interrogation of enemy combatants would violate the constitution’s sole vesting of the commander in chief authority in the president.”
•In the event that the courts would later disagree with its views on the exposure of U.S. agents to torture charges, the OLC also briefed in advance its suggestions for available defenses, such as self-defense, necessity, and qualified immunity.
•Notwithstanding Marbury v. Madison, the president has independent authority to interpret the constitutionality of his actions and of federal laws. Thus, by issuing presidential signing statements, the president could reserve the right not to abide by Congressional enactments, such as the Intelligence Reform and Terrorist Prevention Act of 2004.
It has been argued that these policies imperiled constitutional democracy by undermining the legislative and judicial branches. And that they caused widespread constitutional violations against citizens and non-citizens alike. That raises the question, also addressed by Shakespeare, of who may be held accountable for violations of rights. The famous scene between Bates, Williams, and Henry is usually read with an eye toward the accountability of the King. But it shines light as well on the accountability of his agents. Bates says:
for we know enough if we are the king’s
subjects. If his cause be wrong, our
obedience to the king wipes the crime of
it out of us.
But Henry and Williams disagree:
Henry V: Every subject’s duty is the king’s;
But every subject’s soul’s his own.
Williams: ’Tis certain, every man that dies ill,
the ill upon his own head; the king is
not to answer it.
What then should be the responsibility of the OLC lawyers for advice they gave the president that led to constitutional violations? Yesterday in the Ninth Circuit Court of Appeals, Miguel Estrada, defending Mr. Yoo from a suit by former alleged enemy combatant Jose Padilla, argued that the court should not recognize any cause of action against a Justice Department lawyer under these circumstances because it would invite politically motivated suits.
Mr. Yoo argues that the rules of war governed what could be done to our suspected enemies and prisoners. But I suggest, war is war. If you make war on the Constitution, you are as accountable as if you make war on the country. Or as Henry V put it:
The mercy that was quick in us of late
By your own counsel is suppressed and killed;
You must not dare, for shame, to talk of mercy;
For your own reasons turn into your bosoms,
As dogs upon their masters, worrying you.
In today’s world, Henry might conclude as follows:
Hear your sentence.
You have conspired against our Constitution,
From our own coffers
Received the golden earnest of its demise;
Bybee, the bench;
Gonzalez, the cabinet;
Yoo, the academy;
Wherein you would have sold your freedom to fear,
Our liberties and rights to uncertainty,
Our people to oppression and contempt,
And our whole republic into desolation.
Get you therefore hence,
Poor miserable wretches, to your fate
Copyright 2010 Beacon Broadside
This post originally appeared at Beacon Broadside.
Michael Avery is at Suffolk University Law School. He is the author of four books, the most recent of which is We Dissent: Talking Back to the Rehnquist Court, Eight Cases That Subverted Civil Liberties and Civil Rights.