July 2007 - Posts
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Early this spring, the YLR asked a handful of Law School faculty to weigh in with their thoughts about the direction the next presidential administration could take. The op-eds below are their responses and constitute a “wish list” for the next administration.
Harold Hongju Koh
Repair America’s Human Rights Reputation
Harold Hongju Koh, Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, served as Assistant Secretary of State for Democracy, Human Rights and Labor from 1998-2001.
The Pew Global Attitudes Project recently found, after interviewing 110,000 people in 50 countries, that the United States’ image has plummeted abroad since September 11, due in good part to a decline in America’s perceived commitment to human rights and the rule of law. Six years of defining our human rights policy almost entirely through the lens of the War on Terror have diminished our human rights reputation, given cover to abuses committed by our allies in that “war,” blunted our ability to criticize and deter gross violators elsewhere, and lowered America’s standing as the world’s human rights leader. To repair America’s damaged human rights reputation, the next Administration should take immediate steps to put America’s own human rights house in order, to renew its support of multilateral human rights efforts, to end the ongoing genocide in Darfur, and to restore its own reputation for truthtelling about human rights.
Putting the U.S. human rights house in order would entail not just closing Guantanamo as soon as possible, but also: revising the flawed 2006 Military Commissions Act to ensure availability of the writ of habeas corpus to alleged terrorist detainees; unambiguously banning the use of torture and cruel treatment by U.S. personnel and contractors anywhere in the world—with an enumerated list of forbidden practices (such as waterboarding) that can be monitored by admission of the International Committee of the Red Cross into U.S.-operated or controlled detention facilities; and ending the practice of “extraordinary rendition.”
Concrete steps to restore our human rights multilateralism would include: sending a Special Envoy to the new U.N. Human Rights Council; shifting formally to a policy of constructive engagement with the International Criminal Court; reinitiating a human rights diplomatic process with regard to Iraq following the recommendations of the Iraq Study Group Report; joining new multilateral human rights treaties, such as Convention on Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities (both of which the United States recently backed away from); supporting the Community of Democracies and using that ad hoc multilateral body to support democratic transitions in particular countries, such as Cuba; and promoting “Private-Public” partnerships between governments and multinational corporations to ensure the growth of internet freedom and human rights in China (especially as the 2008 Olympics approach) as well as greater access to essential medicines and the end of “blood resources” (especially oil and diamonds) in Africa.
A third necessary and belated step would be to take firm and immediate action to end the genocide in Darfur. While proposals for intervention vary, indispensable to all are “the 4 Ps”: first, initiating a Peace Process; second, calling for immediate deployment of Peacekeepers into Darfur—with a deadline for Khartoum’s acceptance of such a force, to help achieve an enforceable ceasefire that could lead to a sustainable political settlement; third, Protecting People, both the mass of trans-border refugees and the internally displaced; and fourth, Punishing Perpetrators, by promoting four kinds of accountability: (1) new targeted sanctions (such as travel bans and assets freezes) upon individuals named in the U.N. Commission of Inquiry Report on Darfur and upon Sudanese companies owned by ruling party officials doing business abroad; (2) sanctions targeted at revenue flows from the “blood oil” sector; (3) capital market sanctions imposed upon foreign firms who deal with Khartoum; and (4) mechanisms for sharing information with the International Criminal Court to accelerate indictments against responsible Khartoum officials.
Fourth and finally, the State Department’s Annual Country Reports on Human Rights Practices have increasingly begun to shade or underreport the truth about human rights violations by our allies, especially those such as Egypt and Pakistan, who support us in the War on Terror. Nor has the State Department done enough to ensure that these Country Reports are made widely available in the very countries whose human rights conduct is being described.
This may seem like a long “To Do List” for the next Administration. But America’s human rights reputation defines who we are as a nation and a people. What the last six years have taught is that restoring that human rights reputation is simply too important a task to be left to politicians. Restoring our human rights reputation should be a core challenge for all thinking lawyers, educators, and law students, who are the ultimate guardians of the rule of law.
Heather Gerken 
Create a Democracy Index
Heather Gerken is Professor of Law at Yale Law School.
One of the puzzles in my field, election law, is that we spend a great deal of time thinking about what an ideal election system ought to look like, but almost no time figuring out how to get from “here to there”: that is, how reform actually takes root. Given that it is extraordinarily difficult for reform proposals to get traction in this country, my hope is that the next administration will focus more on “here-to-there” strategies.
Happily, two presidential candidates— Senators Hillary Clinton and Barack Obama—have taken an initial step toward jumpstarting the conversation on reform. They have separately introduced bills whose aim is to establish a “Democracy Index,” a ranking system of state election administration practices, which I proposed in January in an editorial in the Legal Times. The Index would concentrate on the issues that matter to all voters: How long did you spend in line? How many ballots got discarded? How often did voting machines break down? It should work for a simple reason: no one wants to be at the bottom of the list.
The Democracy Index is a “here-to-there” solution. First, and most importantly, it changes the terms of the debate. Right now, it is extremely hard for voters to figure out whether the system is working or not. Problems occur routinely, but they become visible to most of us only when an election is so close that those problems threaten to affect the outcome of an election, and we have no comparative data that would tell us which states’ systems work and which don’t.
The Index would make the systemic problems in our election system visible to everyone. It gives voters a metric to hold elected officials accountable. Election administrators can defend their choices all they want, but they cannot get around the stark reality of the bottom line: How is the system working? And why is the state next door doing so much better?
The Democracy Index is a “here-to-there” solution in a second, key respect. One of the central obstacles to reform is political self-interest. The foxes are guarding the henhouse in this country— partisans make decisions about how elections are run—and it is difficult to persuade politicians to give up that power. Most reformers ask politicians to do just that—to act contrary to their selfinterest. The Democracy Index realigns the interests of politicians with the interests of voters. After all, every Secretary of State will want to be at the top of the Index. And certainly no one wants to be at the bottom. After all, most of the people who run our election system have higher political aims. Imagine you were running against a former Secretary of State like Ohio’s Kenneth Blackwell or Florida’s Katherine Harris. What better campaign weapon could you imagine than a ranking system showing that your state is one of the worst-run systems in the country?
Daniel Esty 
Reigniting America’s Environmental Spirit
Daniel C. Esty ’86 is the Hillhouse Professor of Environmental Law and Policy, with appointments in both Yale Law School and the Yale School of Forestry & Environmental Studies. He is the Director of the Yale Center for Environmental Law and Policy.
America has made a great deal of environmental progress over the past four decades. The Clean Air Act of 1970 and the Clean Water Act of 1972 launched an era of federal government-led environmental action. But the pace of progress has slowed, and it is time for a major overhaul of our approach to environmental protection. The next President should move to restructure how society pursues environmental protection, pushing for much greater use of economic incentives and a shift of the center of environmental gravity to the private sector.
One key point of learning from the past several decades is that environmental progress depends on technological advances. A successful response to climate change, in particular, will require an energy future that breaks free of fossil fuels (or a breakthrough in the capture and storage of carbon dioxide). A second key point of learning is that governments are not very good at doing technology development. Yet, for forty years, the government has played a central role in defining through “best available technology” rules what pieces of pollution control equipment are bolted onto smokestacks or effluent pipes.
It’s time to shift primary responsibility for environmental innovation onto the private sector. Government must still play a critical role in setting out policy goals and ensuring that incentives are in place to promote appropriate corporate activity. But business is better situated to do the work of developing photovoltaic cells, high-efficiency wind turbines, or “smart appliances” that reduce energy consumption. Companies, it turns out, are better at risk-taking, attracting an appropriate mix of skills and talents, paying for success, reinforcing promising lines of research, and redeploying capital where particular approaches show little promise.
By making every company and every individual pay for their greenhouse gas emissions and other pollution as well, we can lure venture capitalists, inventive spirits, and entrepreneurs into the environmental arena—re-energizing society’s march toward environmental progress. But leadership from the very top will be required to launch such a “new” environmental revolution.
Jack Balkin and Reva Siegel 
Choice-Respecting Family Policy
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment. Reva Siegel ’86 is Nicholas deB. Katzenbach Professor of Law and Professor of American Studies at Yale University.
For decades one issue—abortion—has dominated and polarized discussions of reproductive rights and family policy. We need a new direction—a national policy that respects women as responsible decisionmakers as much as it does men, facilitates their choices, and views reproductive rights as integral to a larger family policy. Government can support the formation of strong, stable families by helping women and men avoid unintended pregnancies, and by helping those who want children to have them with less harm to themselves and to their families.
What 
would family policy that respected women’s choices as much
as men’s look like? First, it would provide young people with information about the risks of unprotected sex; and it would improve access to contraception, especially for those most at risk for unintended pregnancies. Second, it would help effectuate women’s choices about unplanned pregnancies—providing information about abortion and adoption, material assistance for those struggling to raise children, legal procedures to help minors make difficult choices in troubled or hostile family environments, and resources to counter domestic violence. It would secure women’s right to an abortion free from government pressure designed to coerce, manipulate, intimidate, or shame women into continuing a pregnancy they wish to end. Third, it would support those choices after birth as well as before—through support for health care and nutrition for struggling families, through day care and workplace accommodation that would make it easier for both women and men to combine caregiving and wagework.
Sadly, family and reproductive rights policies are headed in the opposite direction: Most public support for women who give birth ends with birth; health care, day care, and workplace reforms have stagnated. Meanwhile governments have done everything possible to restrict information about and access to contraception and abortion; to deter health care providers from providing abortion and contraception services; and to encourage pharmacists to deny services on religious grounds. The Supreme Court’s most recent abortion decision in Gonzales v. Carhart only made matters worse; it suggested that states could enact new restrictions on abortion procedures because some women might not know what they really wanted and would regret their choices later on. This new paternalism hardly respects women’s informed choices; it forecloses them. It treats women according to sexist stereotypes as emotional and irrational creatures who cannot be trusted with control over their own reproductive futures.
The effects of these various social policies fall most heavily on poor women, young women, and women in rural areas; ironically, they actually increase the number of abortions, delay many abortions to the second trimester, and increase health complications. Women are pushed at from two directions— coerced and frightened into having unwanted pregnancies, and abandoned after they do the state’s bidding. This is not an acceptable “compromise” between pro-life and pro-choice positions—it is simply dysfunctional.
Government can do better. It can treat both women and men as human beings who have the intelligence to make responsible choices about their reproductive lives. It can help them choose the conditions under which they become parents and better manage the competing demands of parenting and the workplace. It can support family formation and keep existing families strong and stable. If we claim to respect women, we should respect their choices. If we want to promote family values, we should value families. It is as simple as that.
Michael Graetz 
Restructure America’s Tax System
Michael Graetz is the Justus S. Hotchkiss Professor of Law
The aging of the population, longer life expectancies, and rising health care costs will put enormous stress on our ability to fund our government in the years ahead. In the short-term, modest changes in spending or taxes can balance the budget. But going forward we must restructure our nation’s tax system.
Our archaic tax system was designed when the United States had virtually all the money there was. Even a horrid tax system—with individual income tax rates up to 91 percent—could not stymie our economic progress then. Now the U.S. economy must compete worldwide for the investment capital necessary to produce rising living standards for Americans. How should we reform our nation’s tax system so that it is conducive to economic growth, fair, and simple for the American people to comply with?
The income tax law is four times longer than War and Peace and considerably harder to parse. Americans waste $150 billion each year just to calculate and administer the tax. Incentives for unproductive expenditures, along with taxplanning efforts, are estimated to cost our economy an additional $1 trillion a year. These are costs we cannot afford.
The only way to wean politicians from thinking that tax benefits are the way to solve our nation’s problems is to get most Americans out of the income tax system altogether. We can do this and have a tax system that is much simpler and more conducive to economic growth by replacing the income tax for most Americans with a value-added tax (VAT), a broad-based tax on consumption used in every other Organization for Economic Cooperation and Development country and by nearly 150 countries around the world.
Here is the general scheme: Enact a value-added tax at a 10–14 percent rate to finance an exemption of $100,000 from the income tax, and substantially lower the individual and corporate income tax rates on income above that. This would free 150 million Americans from having to deal with the income tax at all. Use a smart card or employer-based refunds to offset the regressivity of the VAT for low and moderate income people and to replace the Earned Income Tax Credit.
Unlike many other tax reform plans that have been advanced, this system would not shift the tax burden away from our wealthiest citizens down the income scale. It would be far simpler and less costly to comply with and more favorable to savings, investments, and economic growth than our current tax system. It would fit well with international arrangements and improve the competitiveness of American businesses and workers. And it would stop the madness of relying on income tax breaks as the solution to the nation’s social and economic problems. I detail this plan and the reasons for it in a book entitled 100 Million Unnecessary Returns: A Simple, Fair, and Competitive Tax Plan for the United States, forthcoming in January from Yale University Press. I hope you will take it seriously.
John Donohue 
Rethink the “War on Drugs”
John J. Donohue III is the Leighton Homer Surbeck Professor of Law
Crime is an issue that often seeps into Presidential elections in one form or another. Indeed, the Bush Administration has rolled back or undermined the two primary crime-fighting initiatives of the Clinton Administration by allowing the 1994 federal ban on assault weapons to lapse, and by eliminating Clinton’s COPS program, which put tens of thousands of new police on the streets of American cities. Gun control is largely a dead letter, since the NRA has shown that it has the power to keep any type of gun in the hands of anyone who wants them, as well as the power to punish any Democrat who seeks greater gun control legislation.
One area that could bring large dividends in terms of crime reduction would be to change tactics in the quagmire of the American war on drugs. With blind fidelity to a failed policy, we continue to fritter away scarce law enforcement resources fighting sale and possession of drugs and to put hundreds of thousands in prison at enormous cost to taxpayers and to inmates and their families. Many substances from alcohol and nicotine to marijuana, cocaine, and heroin impose high social costs on American society, but only the illegal drugs lead to mass incarceration, corruption of police, street killings, and other acts of violence in the effort to market them to a desirous American population. Just as the end of Prohibition generated enormous crime reductions, legalization of the above drugs would likely bring about similar crime drops, while risking increases in the high costs attending the likely increase in consumption and abuse.
The proper way to deal with all of these addictive substances is to legalize, tax heavily, ban all forms of marketing, and fund efforts to restrain consumption and provide treatment for abusers. Instead, we have pursued a policy that either puts hundreds of thousands of Americans in prison when a coordinated and aggressive regulatory posture could likely restrain demand in a far less costly manner, or gives far too much freedom to stimulate demand and sales by aggressive marketing and advertising. One potential obstacle to a regime of legalization coupled with discouraging regulation and taxation is that the suppliers of addictive substances will use constitutional arguments to advance their objectives (one can imagine the briefs by sellers of marijuana insisting on their first amendment rights to peddle the drug should legalization occur) or enlist the support of compliant legislators to help stimulate demand (note the activities of the gambling industry for an unwholesome example). This might suggest that constitutionally enshrined restrictions on the ability to market harmful substances might be an important antecedent to an effort to reduce crime by eliminating the staggering social costs of the war on drugs.
Jonathan Macey 
Call for a Corporate Revolution
Jonathan Macey ’82 is Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law and Deputy Dean at Yale Law School
Ten years ago, nobody bothered to ask what the next administration should do about corporate law. Corporate law in general and the internal corporate governance of public companies in particular were issues dealt with almost exclusively at the state level. Intervention in corporate governance at the federal level was fairly rare, incremental, and reserved for particularly highly salient political issues like takeovers and insider trading that politicians simply could not afford to resist.
Enron, WorldCom, Adelphia, Tyco, Global Crossing and the other highprofile corporate meltdowns at the turn of the century changed all of this. Now everything from corporate loans to executives to the relationship between boards of directors and their outside auditors is covered by federal law on top of state law. The political spoils from regulating U.S. companies and capital markets simply became too irresistable.
Over-regulation has gotten so bad that we need more than mere reform. We need revolution. The average number of IPOs made in the U.S. has dropped by 72 percent over the last five years, and by a whopping 85 percent in the vital technology sector. Twenty-three of the twentyfive largest global IPOs in 2006 were listed on exchanges outside of the U.S.
Nowadays, when venture capitalists have finished making their contributions to start-up companies, they often no longer even attempt the traditional, time-honored strategy of doing an IPO. Instead, following the sclerotic European universal banking model, they simply try to line up a merger deal with an old-line established firm.
The next administration should start by recognizing that U.S. capital markets are in a crisis situation and that this crisis is caused by federal over-regulation of public companies and initial public offerings, and runaway private litigation. Second, it should sponsor sweeping legislative reform that removes the authority of the SEC to regulate not only internal corporate governance of U.S. corporations, but also public securities markets and exchanges and initial public offerings. The legislation should also unleash the market for corporate control by making defensive tactics such as the poison pill illegal unless authorized by shareholder vote.
U.S capital markets rose to prominence in an era in which healthy competition among rival stock exchanges and regulation at the state level enabled the U.S. not only to attain a dominant position in world capital markets, but also to provide a reliable low-cost source of capital for the emergent entrepreneurial class. If the new administration decides to abjure its recent practice of pandering to special interest groups and serve the needs of investors and workers, it is still not too late to unshackle the robust forces of capitalism that made this country great.
William Eskridge 
A Wish List for Gay Rights
William N. Eskridge, Jr. ’78 is the John A. Garver Professor of Jurisprudence
Lesbian, gay, bisexual, and transgendered (LGBT) Americans are worthy citizens who contribute productively to the nation. Under this premise, consistent with scientific evidence and people’s experience, most LGBT rights advance national interests. Here is a realistic wish list:
1. Job Discrimination. The proposed Employment NonDiscrimination Act would bar most workplace discrimination because of sexual orientation or gender identity. Most Americans support this legislation; it will not cost employers much money; and it provides essential employment protections against prejudice- based harassment and discrimination in the workplace.
2. Anti-Gay Violence. LGBT Americans are subject to vicious violence by private and public bigots. The federal government should provide funds for state anti-violence programs, hate crime prosecutions, and shelters for LGBT youth subjected to violence from their families.
3. Same-Sex Couples. The Defense of Marriage Act (1996) exclusion of same-sex couples from federal statutory “marriage” rights should be repealed. Meanwhile, the President should issue an executive order (similar to those issued by numerous governors) allowing federal employees to include their samesex domestic partners in their health care benefits. If it does not repeal DOMA, Congress should enact legislation recognizing domestic partners for purposes of immigration, federal safety net entitlements like social security, and conflict of interest laws.
4. Title IX (Anti-Discrimination in Educational Programs). The Administration should strengthen Title IX’s protections for LGBT students against discrimination and harassment and should insist on more progress toward complete gender equity in athletic programs.
5. Sex and AIDS Education. Federal sex and AIDS education programs should abandon their current sectarian (antihomosexual and anti-abortion) slant and return to a medical focus. Follow the Scandinavian model for sex and AIDS education, which is fact-based, practical, and non-prejudiced.
6. Military Service. The 1993 statute excluding openly gay Americans from military service has been a costly failure, and the Administration should create a bipartisan commission to gather information and suggest reforms. These might include repeal of the statute, experimental programs where the ban is revoked for specific units, and stronger anti-harassment rules.
Peter H. Schuck 
School Choice
Peter H. Schuck is the Simeon E. Baldwin Professor of Law
The key to America’s future is quality education for all youngsters. Governments at all levels have spent trillions of dollars on programs aimed at closing the vast educational achievement gap between low-income children and their more fortunate peers, but it remains.
We cannot close this gap until disadvantaged parents have the power, not just the right, to send their children to schools other than the low-performing ones to which they are now consigned. If parents had the choice and the wherewithal to exercise it, many would opt for alternate public schools such as magnets or operationally independent “charter” schools, while others would choose secular or religious private schools. The well-documented success of the Catholic schools in educating the same kinds of low-income children—whether Catholic or non-Catholic, minority or white, immigrant or American, urban or suburban— whom public schools have manifestly failed to reach is a strong indictment of the public system.
Every careful study of choice shows some benefits and no significant harm, with per pupil expenditures that are nearly half those in the public schools. For people who enjoy choice to argue that low-income children must be denied choice in order to “save” those schools is not simply wrong as an empirical matter (public schools that must compete for scarce dollars with private ones tend to improve), and as a historical matter (choice was common until the mid-19th century). It is also morally perverse, preferring the putative welfare of the school system to that of the children it is meant to serve.
Private schools and religious schools are often more successful than public ones in teaching civic virtues, community service, tolerance, and even feminism. In localities with choice, private schools tend to be more integrated, both racially and by income, than are their public schools, which reflect segregated housing patterns. Choice plans, by reducing the premiums paid for housing in areas with good public schools, make it somewhat easier for poorer families to move to those areas. No wonder vouchers are most strongly supported by poor inner-city residents and most vigorously opposed by well-to-do suburbanites and their teachers unions.
Ian Ayres 
Streamline Tax Filing
Ian Ayres ’86 is the William K. Townsend Professor of Law at Yale Law School and a Professor at Yale’s School of Management
The IRS should fill out your tax return for you. The IRS already has all the information it needs to fill out the complete forms for millions of wage income taxpayers who don’t itemize their deductions. Taxpayers wouldn’t be forced to use the IRS’s pre-completed form. They could revise it or they could just throw it away and start from scratch.
Joe Bankman, the mastermind behind this idea, has shown that there are as many as 50 million Americans who would not need to change a thing and there are 50 million more where the IRS could make a darn good start. The feds even know enough to complete your state form for you while they’re at it.
This isn’t some pie in the sky idea. California’s Ready Return Project already shows that it can work. In 2005, over 11 thousand Californians used tax returns that the state had filled out for them in advance. The participants in the pilot program loved it. Almost all the users said they’d use it again next year.
But the Tax Preparation industry hates this idea and has been fighting it tooth and nail. Why pay a tax preparer to do your taxes if the government has already done it for you? Intuit, the maker of Turbo Tax, last year poured more than $1 million into the California comptroller’s race in an attempt to seize control of the state’s Franchise Tax Board. They succeeded in killing the program for 2006 returns, but it is scheduled to expand in California to up to a million prepared returns in 2007.
John Edwards has got out in front on what should be a bipartisan issue. His “Form 1” program would have the IRS do the deed for millions of taxpayers.
It’s kind of crazy that the current system requires people to keep copies of their W2 and 1099 forms. This would be like Visa requiring us to keep copies of all our charges, and then to fill in a blank form reporting how much we spent. Customers expect Visa to start the ball rolling by sending them a bill. We should expect no less from the IRS.
I remember my dad taking over the kitchen table for one weekend every April as he struggled to do our family’s taxes. This is one rite of spring that we should try to end. Y
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Chris Mandernach ’08 drove a ship into a mine-filled river, at night, during a sandstorm, on purpose. Jon “Tyler” McGaughey ’09 led the battalion that seized one of Saddam Hussein’s Presidential Palaces. Ken Harbaugh ’08 flew combat reconnaissance, commanding the only EP-3 aircraft in the Pacific immediately following 9/11.
Mandernach, McGaughey, and Harbaugh are among a small but growing contingent of Law School students who are veterans. This past year the Law School was home to nine students who have served on active military duty.
Chris Mandernach ’08 
Lieutenant, U.S. Navy
In 2003, as coalition forces were poised to invade Iraq, Chris Mandernach ’08 was stationed aboard the USS Raven in the Khawr Abd Allah, a shallow river that joins southern Iraq and northern Kuwait. During that first night of Operation Iraqi Freedom, Lieutenant Mandernach and his fellow sailors looked to the sky lit by Tomahawk missiles and waited for the signal to drive their ship into a minefield.
The Raven’s mission: to find and disarm sea mines. At a mere 188 feet long and 38 feet wide, the Raven’s high-definition sonar and remotely operated submarine put it on the front line, clearing a path for larger boats to make their way to Iraq’s sole deep water port of Umm Qasr.
“We knew, based on what the Iraqi government had done in the first Gulf War, it was likely that the whole stretch of river was going to be mined,” Mandernach explains. The Raven’s crew studied sonar returns, identified potential mines, and then dismantled them. Even now, Mandernach speaks of the power of mines with reverence. “Mines lurk unseen, constantly listening for ships’ sounds or sensing for pressure changes in the water column. They are unforgiving,” he says.
Mandernach’s route to the Middle East began in a small town in northern Minnesota with a childhood dream of becoming an astronaut. As a high school student, he set his mind on the Naval Academy, hoping an education there would lead to NASA. By the time he realized his poor eyesight would keep him from a career as an astronaut, he had become enamored with the idea of the Naval Academy as a way for a small-town kid to break out and see the world.
“It took a while for my parents to warm to the idea,” he says. “They were always very supportive, but the Navy wouldn’t have been their first choice.”
After graduating with distinction from the Naval Academy, Mandernach matriculated at George Washington University, earning a master’s degree in security policy studies while moonlighting within Navy Staff’s political military affairs division. From there he joined the crew of the USS Chancellorsville, and was stationed in Yokosuka, Japan, for two years before being stationed in Bahrain aboard the Raven.
During his time in the Navy, Mandernach drove naval warships into nineteen different ports in twelve different countries on four different continents. He flew airplanes over the Gulf of Mexico and sailplanes over the Rocky Mountains. He drove a submarine 700 feet beneath the Atlantic. He had rocks thrown at him by young Bahraini children waiting for their school bus. He listened to a panicked voice crackle over a loudspeaker, announcing fears of a chemical attack headed his way. He saw firsthand the way war changes day-to-day: Iraqi fishermen first welcoming him as a liberator, then, within weeks, shunning him as an occupier.
When he thinks of his eight years of service, it’s the sounds and smells and memories of the people he worked with that come back first.
“There are these days in Bahrain,” he remembers, “when it’s 130 degrees, the sun is setting, you’ve got sand and dust and evening call to prayer barking over the speakers through the town. And here I am, this American, this kid from Minnesota. There are so many memories like that.”
After serving overseas, Mandernach returned to the Naval Academy where he taught in the political science department, instructing midshipmen majoring in information technology with a concentration in national security.
Now finishing his second year at the Law School, Mandernach’s transition to YLS was smooth, despite what he refers to as a “language barrier” between those who have served and those who haven’t. “It sounds cliché now,” Mandernach says, “but it’s true that there’s a culture gap between the military and the American public. Coming here, you really see that... so few people — faculty and students alike — have experienced the military. You’re really speaking a foreign language.”
After spending years being a practitioner of policy created by others, Mandernach now has his sights set on serving the country by being involved in making policy. To that end, he will serve with the legal advisor at the State Department this summer.
“I left the Navy with a good taste in my mouth,” he says. “But some of my experiences also showed me that foreign policymakers often miss the human consequences of their actions, and sometimes even end up undermining their own policy intentions. I understand the consequences of policy decisions because I have lived them. Now, I’d like to help shape those policy decisions.”
Jon “Tyler” McGaughey ’09 
Captain, U.S. Marines
Jon “Tyler” McGaughey ’09 always knew he would become a Marine. His grandfather fought as a Marine in World War II and the Korean War. His father served first as an enlisted Marine in Vietnam, and later as a Marine officer flying helicopters for twenty years.
“Growing up and hanging around my father’s friends and hearing their stories, I always knew I wanted to serve my country as a Marine for at least a few years,” McGaughey says.
As a student at the University of Virginia, McGaughey participated in NROTC (Naval Reserve Officer Training Corps) and was commissioned a second lieutenant upon his graduation in 2001.
Fast forward from that kid listening to his father’s war stories and training with NROTC to March 2003 when McGaughey, an officer in Company B, First Battalion, Fifth Marines and on his first deployment to Iraq, was among the first American troops to cross the Iraqi border. After being staged in Kuwait for all of February and the beginning of March 2003, McGaughey’s battalion was ordered over the border when the Iraqi oilfields began to burn.
After securing the Rumaylah oilfields, the battalion moved north to what is now Sadr City to penetrate the heart of Baghdad from the north and seize one of Saddam Hussein’s presidential palaces.
At the beginning of that attack, my company was at the rear of the battalion,” McGaughey remembers, explaining that the units rotate position, and that his battalion had been in the lead in an earlier attack. “As we assaulted into the city,” he continues, “the lead company had some of their vehicles break down, and the battalion stalled in the middle of a major highway. Not good.”
McGaughey, commanding his company’s lead vehicle, was moved to the front of the battalion. He quickly realized that somehow the battalion had gotten off course, and it was his job to get the Marines — approximately 600 of them — back on track.
“It was the middle of the night and my map was in black and white,” he says. “I had GPS, but after months in the desert it was prone to turn off for no reason … I was having a hard time figuring out where we were and where we needed to go.”
McGaughey knew the palace was on the edge of the Tigris River and had a general idea of where the river was, so he pointed his vehicle in that direction and led the battalion through the city.
“As we made our way through the city we started taking enemy fire,” he remembers, “… multiple RPGs hit our vehicle and some of my Marines were badly wounded. We eventually made it to the palace — which was empty, despite intelligence reports to the contrary — and my Marines were evacuated. All of them lived.”
What McGaughey does not say about that experience is that his role in gaining U.S. control of the Al Azimuyah Presidential Palace (as well as his work securing a bridge over the Saddam Canal and capturing an enemy mortar section in a small village outside of Baghdad) earned him a Bronze Star with valor.
On his second deployment to Iraq, just six months after the first, McGaughey found himself in the besieged Al Anbar Province. His battalion participated in the first Battle of Fallujah in April 2004, and conducted counter-insurgency operations in the villages surrounding Fallujah for the next few months. He earned the Navy and Marine Corps Commendation Medal with valor for firefights that took place during that time.
Though McGaughey saw some of Iraq’s worst ground combat, he also spent much of his five years of active duty in routine training while based at Camp Pendleton, California. After his second deployment to Iraq, he returned to the U.S. and was in charge of supervising the training of a reserve infantry unit stationed in Las Vegas, Nevada.
His ultimate plan, though, had always been to become a lawyer. Yale’s small classes and open curriculum appealed to him. “I also liked Dean Koh’s speech during admitted students’ weekend,” he says. “Especially the part where he said that Yale is the place where you can start doing things that please you instead of things that please ‘them.’”
What pleases McGaughey most now is studying criminal law with an eye toward becoming a federal prosecutor or criminal defense attorney.
“Some things about being a civilian are nice,” he says. “I can decide not to shave on a given day without being yelled at and I can grow out my hair if I feel like it.
“On the other hand, it has been a little tough transitioning to a different teaching style — law school teaching and Marine teaching are markedly different,” he adds. “In the Marines they don’t use the Socratic Method to tease out the principles of assembling and disassembling the M16A2 service rifle. Also, surprisingly, debating current policies/ regulations and offering suggestions for improvement is not something that is highly encouraged. But the adjustment [to law school] hasn’t been too difficult, and I am enjoying the challenge.”
Kenneth Harbaugh ’08 
Lieutenant, U.S. Navy
As a Navy pilot assigned to combat reconnaissance, Ken Harbaugh’s call sign was “Poet.” Harbaugh earned the nickname for his introspective nature and his penchant to wax, well, poetic. The name stuck after he won two major writing awards. Today, it’s a call sign he’s still living up to, contributing commentary pieces to National Public Radio that have landed him in some hot water.
Though Harbaugh comes from a line of veterans — his grandfather flew bombers in World War II, taking an explosive anti-aircraft round through his thigh, and his father won two Distinguished Flying Crosses over Vietnam — it wasn’t originally his intention to enter the military. In fact when he left home for college, the military was the furthest thing from Harbaugh’s mind.
“I was the guy who hitchhiked around Tasmania, played guitar, and grew a beard,” he says. “But being a bum left lots of time for thinking.” He thought about his father and his grandfather. He decided his life was a little too comfortable, that he hadn’t paid his dues. And then he joined the Navy.
Flying, it turned out, really is in Harbaugh’s blood. He was first in his class at Officer Candidate School and when it came time to choose his assignment he opted for combat reconnaissance in an EP-3 — an aircraft Harbaugh calls “fat, slow, and ugly.” But being assigned to an EP-3 would ensure that he would be gathering intelligence essential to national security, and making that kind of difference was Harbaugh’s goal.
The Navy sent him to Top Gun for intelligence pilots (affectionately referred to as “Top Geek”) and he rose to the rank of Aircraft Commander of his EP-3, responsible for a $100 million plane and an elite crew. He played cat-and-mouse with enemy jets, flew secret missions with a price on his head, and gathered intelligence that went straight to the President.
His schedule depended on the type of intelligence he was tasked with gathering. “Days would pass where we would do literally nothing, and then for weeks on end we’d be flying to the point of exhaustion,” Harbaugh says. In between deployments, he and his crew members would train, catch up on paperwork, and work on repairing marriages so they could withstand another deployment. “It was tough, but the work was incredibly rewarding,” he adds.
Flying, though, wasn’t enough for Harbaugh. And so he wrote. He contributed articles to Proceedings (the Navy’s professional journal), and the U.S. Naval Institute invited him (twice) to address their annual convention. He raised more than a few eyebrows when he told the assembled admirals and politicians what they should do differently.
When he began teaching at the Citadel, Harbaugh had more free time and his itch to write grew stronger. He started by contributing commentaries to National Public Radio’s All Things Considered. “It was stuff I thought the average American should know about the military,” he says. “But what a mess I made. My relationship with NPR outraged some Navy big-shots. They weren’t fellow pilots, or anyone with wartime experience. Just bureaucrats protecting their turf.”
The irony, Harbaugh points out, is that his commentaries were pro-military and drew tremendous listener feedback. Harbaugh’s decision to discuss the My Lai massacre with his students also led to more than a little consternation with the Navy brass.
Similar to Mandernach’s experience, Harbaugh’s decision to attend law school was prompted by a desire to find another entrée to public service. “From the cockpit to the classroom I have watched lawmakers write their rules and issue their orders,” Harbaugh explains. “For long enough I have been the instrument of my government’s policies. Now I will help craft them.
“I’ve placed my life in the hands of American’s politicians, and sent my Citadel students off to a war that many civilian leaders don’t understand. This country needs more lawmakers who have been shot at.” Y
To listen to Ken Harbaugh’s commentaries on All Things Considered, visit www.npr.org or read the transcripts at www.law.yale.edu/news/Articles&Op-eds.htm.
Text by Kaitlin Thomas
View a PDF of this article as it appeared in the Summer 2007 issue of the Yale Law Report
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It was a Memorial Day that will hold special memories for Yale Law School’s Class of 2007. Before a gathering of about 1200 family, friends and faculty members in the sun-filled Law School Courtyard, 222 students were honored at Commencement ceremonies on Monday, May 28.
Dean Harold Hongju Koh gave welcoming remarks, proudly introducing “quite simply, the finest new law graduates on the planet this year.”
He recounted some of their major accomplishments and asked the class — the first to start and finish with him as dean — to remember some simple lessons. Among them: that accomplishment without humility is tragic and that excellence without humanity is worthless. He said Yale Law School has always been a community of commitment, dedicated to the pursuit of careers “not of selfishness but of service.”
The announcement of degree candidates followed — 186 Juris Doctor degrees, thirty Master of Laws, three Doctor of the Science of Law, and three Master of Studies in Law.
Former Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law Pamela Karlan ’84, chosen by the class to deliver the commencement address, spoke next. Currently the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University, she told the students, “Yale Law school is the place where I fell in love with the rest of my life.”
In a talk sprinkled with humor, poetry, props, personal anecdotes, literary quotes, and baseball references, Professor Karlan quoted from the opening sentence of David Copperfield and challenged students to become the heroes of their own lives.
“The pages of the briefs you file and the memoranda you write and the opinions you publish should be a part of making your own lives heroic. And you should use the gifts luck and Yale have given you to enable people who have been excluded from the great good fortunes all of us have enjoyed, to become the heroes of their lives as well.”
Also addressing the graduates was Pius Nkonzo Langa, Chief Justice of the South African Constitutional Court, who received an honorary degree earlier in the day from Yale University. Born in poverty in apartheid South Africa, Langa rose from shirt factory worker to South Africa’s first black Chief Justice. He congratulated the graduates on their success but urged them to go beyond it to a different kind of success.
“When we succeed, we think we are the whole world—it is the best of times—but you look over the fence and you see the worst of times,” said Langa, referring to the various human tragedies being played out around the world.
“People who go beyond themselves, seeking to make a contribution to the betterment of mankind, are the true successes,” he said. To read Dean Koh and Professor Karlan’s remarks and to see additional photos and a video of Commencement, visit www.law.yale.edu/news/5186.htm. Y
To view photographs of Commencement 2007, visit the Yale Law Report [Online] photo gallery.
Photographs by William K. Sacco, Yale University Media Services; Text by Kathy Colello
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An opinion article by Owen Fiss, Sterling Professor of Law
The phrase “War Against Terrorism” has no discrete legal content. It was politically inspired, and used to mobilize American society. Yet the declaration of the “War Against Terrorism” marked the beginning of a unique challenge to the rule of law that began on September 11, 2001, and continues to this very day.
In speaking of the rule of law, I refer not to the statutes and regulations that serve the purposes of the state, but rather to the Constitution itself, which creates the public morality of the nation. The Constitution is not exhausted by the words appearing in the document executed in 1787 and its twenty-seven amendments. It also includes principles, such as the separation of powers or the right to travel, that are inferred from the overall structure of the Constitution, and certain enactments of Congress—the Civil Rights Act of 1964, for example—that articulate the governing principles of American society. These principles are laden with a special normative value that derives from the role they play in defining our national identity—what it means to be American.
Since September 11, at least three of these principles have been put in issue. The first is the prohibition against torture, derived, as I see it, from the Eighth Amendment and our participation in the Convention Against Torture. The challenge comes not so much from the grotesque treatment of prisoners at the Abu Ghraib prison in Iraq, where disciplinary proceedings were brought against those responsible, but from the Administration’s actions in the war against Al Qaeda itself.
In order to broaden the range of techniques that interrogators can use against prisoners allegedly linked to Al Qaeda, an August 2002 Department of Justice memorandum argued that only acts causing pain “equivalent in intensity to the pain accompanying physical injury, such as organ failure, impairment of body function, or even death” fell within the legal definition of torture. The Department of Justice later distanced itself from this definition, but a separate December 2002 Department of Defense memorandum establishing guidelines for the interrogation of prisoners held at Guantánamo suggested that two practices almost universally understood as torture—the use of scenarios designed to convince detainees that death was imminent, and use of a wet towel and dripping water to induce fear of suffocation— though forbidden “as a matter of policy for the time being,” nonetheless “may be legally available.”
The program of “extraordinary renditions,” in which American officials have abducted suspected Al Qaeda members and transferred them to countries that routinely engage in torture, suggests a similar disregard for the principle against torture. Indeed, it has become an open question whether the President even believes himself bound by the principle. In December 2005, when he signed a statutory ban on torture, President Bush said that he intended to construe the ban as consistent with his constitutional powers as Commander in Chief and his duty to protect against terrorist attacks, a statement that has been widely understood as indicating that he may not feel bound by the act’s language. The President is entirely correct that statutes cannot constitutionally interfere with his powers as Commander in Chief, but the statutory ban on torture merely codifies an underlying constitutional prohibition that is, of course, superior to the President’s power to lead the military. As such, it is fully binding on his actions.
The second principle that has been put into doubt is the right of the people to communicate without fear of government eavesdropping. This freedom is rooted in the Fourth Amendment and is not absolute: the Fourth Amendment only prohibits unreasonable searches. Courts have historically protected this freedom by requiring the government, if at all possible, to apply for a judicial warrant before listening in on private conversations.
In 2005, news media revealed that soon after the September 11 attacks the President had authorized the National Security Agency (NSA) to intercept communications between persons in the United States and persons abroad if the NSA believed that one of the parties was linked to Al Qaeda. This program has proven enormously controversial, and much of the controversy has centered on whether it violated a 1978 law, the Foreign Intelligence Surveillance Act (FISA), that prohibits such governmental surveillance without authorization by a special court. In a 2006 legal memorandum defending the program, the Attorney General argued that the wiretaps were much like any other strategic engagement with the enemy, exclusively within the President’s powers as Commander in Chief, and not subject to statutory regulation. This past January, the Attorney General modified his position, perhaps in a nod to critics or to an unfavorable lower court decision denying the government’s motion to dismiss a challenge to the NSA program. The Attorney General indicated that he had, for the first time, begun to obtain judicial approval of the wiretaps under FISA. But he did not concede the issue of Presidential power, and left unresolved important questions about the scope of judicial oversight. The Attorney General did not disclose, for example, whether the special court is approving wiretaps on an individual basis, or whether it is granting blanket authorizations that cover multiple wiretaps.
To my mind the focus of the inquiry should not be on whether the NSA program violates FISA, but rather whether it violates the Fourth Amendment itself. Admittedly, the Supreme Court has never spoken directly to the issue of whether the government must obtain a warrant before intercepting communications like those at issue in the NSA program, but the very reasons that the Supreme Court has imposed a warrant requirement in other wiretapping cases— including those involving domestic threats to public order— are fully applicable. A warrant requirement does not prevent the President from thwarting terrorist attacks, but minimizes abuses and avoids the impairment of communicative freedom that comes from knowing that the President could tap the phone of anyone he claims is linked to Al Qaeda.
A third principle challenged by the “War Against Terrorism” is what I call the principle of freedom. This principle is rooted in the constitutional guarantee of the writ of habeas corpus and due process, and denies the government the power to incarcerate anyone without charging them with a crime and swiftly bringing them to trial. This principle contains an exception for the exigencies of war: As a matter of necessity, enemy combatants can be seized on the battlefield and imprisoned for the duration of hostilities.
In the midst of the Afghanistan War, the President declared that alleged soldiers of the Taliban and Al Qaeda captured anywhere in the world were not ordinary prisoners of war but rather “illegal enemy combatants.” This special designation allows the military to interrogate them on a protracted basis, to incarcerate them indefinitely, even beyond the duration of hostilities, to put them on trial before military commissions, and to punish them for the simple act of fighting. Traditionally the designation of “illegal enemy combatant” applied to individual spies or saboteurs, or to irregular militias, never to entire armies.
Because they are being held as “illegal enemy combatants,” prisoners at Guantánamo have had little ability to press their claim for freedom. Some insisted, for example, that they never fought for the Taliban or Al Qaeda, but had been wrongly seized by local authorities or bounty hunters. At first there was no procedure to adjudicate these claims, but in July 2004 the Administration established a system of administrative tribunals to review individual cases. These tribunals were staffed by the military, freed of many of the ordinary rules of evidence, and though military personnel serve as personal representatives, the prisoners were not allowed the assistance of counsel.
The Administration is now putting some of the Guantánamo prisoners on trial, using military commissions instead of courts martial or ordinary civilian courts. Traditionally military commissions were used to try persons caught red-handed in a theater of war, and, in response to litigation challenging their use at Guantánamo, the Supreme Court expressed the fear that the Administration had transformed them “from a tribunal of true exigency into a more convenient adjudicatory tool.” But the Court stopped short of declaring these tribunals an offense to due process, holding only that they conflicted with a statute. In October 2006, Congress responded to this decision by enacting a law specifically granting the Administration authority to continue with its use of military tribunals. This statute came on the heels of an earlier use of administrative tribunals to review the status of the Guantánamo prisoners and denied them the right to petition for a writ of habeas corpus.
The Administration has not been content to confine the “illegal enemy combatant” designation to those seized in Afghanistan or another theater of armed conflict. The war against Al Qaeda knows no bounds, and the Administration has thus invited us to view the United States itself as a battleground and subject to the same rules. As a result, a citizen of Qatar studying at Butler University in Indiana (Ali Saleh Kahlah al-Marri) was seized and is now being held incommunicado at a naval brig in South Carolina. Similarly, an American citizen (Jose Padilla) was arrested at O’Hare airport and held in the same brig for more than three years before being charged with a crime in federal court.
One could accept that the war against Al Qaeda is a war, and resist the conclusion—that the United States is a battleground similar to Afghanistan—not just as a matter of ordinary usage, but because of the consequences that conclusion would have for American society. To treat the United States as a battleground in the same sense as Afghanistan would threaten the fabric of ordinary life and put the exception to the principle of freedom for enemy combatants in the position of eating up the rule. The Administration would be able to imprison anyone living within our midst—citizens and non-citizens alike—without ever charging them with a crime and putting them on trial.
Many have decried these developments as an abuse of executive power. Yet while the Executive Branch is the driving force, the other branches are complicit in these challenges to the rule of law. When Congress enacted the 2005 statute affirming the ban against torture, legislators failed to provide any remedy for violations. Congress has not taken any steps to stop the NSA wiretapping program, though the Administration’s about-face in January 2007 made such measures less urgent. When it comes to the principle of freedom, Congress became a full partner with the Administration, passing legislation to deny aliens deemed “illegal enemy combatants” access to the protection of the writ of habeas corpus and authorizing their trial by military commissions.
The Supreme Court’s performance has been no better. Its decisions have caught the headlines because they rebuffed the Administration, but they are hardly victories for the Constitution. In one case, the Court ruled that that an American citizen (Yasser Hamdi) held as an illegal enemy combatant in the South Carolina naval brig was entitled to the assistance of counsel and an evidentiary hearing regarding his claim that he had not taken up arms against the United States. This ruling was based on due process, yet it left the prisoner to carry most of the evidentiary burden and four Justices expressed their view that a military tribunal offered a sufficient forum for the prisoner to press his claim for freedom.
In other cases, the Court’s performance has even been more timid. When Jose Padilla challenged his detention, the Supreme Court refused to rule on the merits and instead held that he had initially filed his habeas petition in the wrong court. Even more significantly, the Court has refused, at least so far, to address a ruling that the Court of Appeals in Washington, D.C., first advanced in 2003 and reaffirmed this February, that aliens held at Guantánamo do not have any constitutional rights that can be vindicated by the writ of habeas corpus. On April 2, 2007, the Supreme Court denied a writ of certiorari seeking review of this judgment. In so doing, the Court allowed the program of the elected branches to run its course, but it failed, yet again, in its duty to safeguard the Constitution and the values it embodies. Y
Sterling Professor of Law Owen Fiss teaches procedure, legal theory, and constitutional law at Yale Law School. He is the author of many articles and books on these subjects, including more recently, A Way Out/America’s Ghettos and the Legacy of Racism, Adjudication and its Alternatives (with Judith Resnik), and The Law as it Could Be. Professor Fiss also co-directs Law School programs in Latin America and the Middle East. In the following article, Professor Fiss identifies what he sees as challenges to the Constitution and the American rule of law brought on by the “War Against Terrorism.”
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