pageok
pageok
pageok
Detainee Bill Goes Forward, Surveillance Bill Stalls:
The New York Times has the scoop:
Congress on Tuesday was headed toward a split decision on President Bush's pre-election national security agenda, moving closer to passage of legislation on the handling of terrorism suspects while all but giving up hope of agreeing on a final bill to authorize the administration's eavesdropping program.
Frances (mail):
Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." Under the proposal that the US Senate is poised to adopt the executive branch will not be answerable to any court anywhere for indefinitely detaining such people (much less subjecting them to "alternative interrogation procedures"). Don't you lawyers have anything at all to say about this? Any opinions at all?
9.27.2006 8:39am
John McG (mail) (www):
I think what this boils down to is that US citizens imagine themselves as possibly being targets of surveillance, but not detainees. So, we'd rather be open to the possibility of torturing that other guy over there than the possibility that someone might here our phone conversations.

Sad, sad.
9.27.2006 9:00am
Daniel Chapman (mail):
If you had said "Congress THNKS US citizens imagine..." I might be willing to buy it. The average citizen had no say in whether that bill passed (they get to speak in November), and I doubt the average citizen knows more than what the NYT has told them about the "domestic surveillance" program.

You're right on one point though... sad.
9.27.2006 10:24am
Just an Observer:
FYI, Here is today's Washington Post story about the surveillance bill:

No Compromise On Wiretap Bill
Focus Now on House Version


As I have mentioned before elsewhere, I think the politics of the House of Representatives on this issue, especially the Republican majority, is one of the most underreported elements of this story. I certainly don't understand it fully.

There may be some pure turf scrabbling going on there. Judiciary Chairman Sensenbrenner is famously jealous of his committee's prerogatives. I wish I could find some sign that he and Intelligence Chairman Hoekstra were opposing the Specter bill on principle. I do think the chairmen's influence ultimately is more important than that of the House bill's sponsor, Heather Wilson.

Then there is the sidebar of the small but vocal band of libertarian-leaning House Republicans led by Jeff Flake. Their opposition, which actually is articulated on principle, reportedly helped block an earlier attempt to substitute the Specter language as the House vehicle.

If it were up to Boehner, I think the White House would get whatever it wants.

Also, bear in mind that the Wilson bill is itself a major rewrite of FISA, and would directly authorize a program of warrantless surveillance under the auspices of a modified FISA statute. The Wilson bill is much more far-reaching than its closest analog in the Senate, which is the DeWine bill. But Wilson's bill would not completely retract Congress' assertion of authority to regulate such surveillance, as Specter's bill would do.
9.27.2006 10:29am
Anderson (mail) (www):
I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States."

Yeah. EV can post all he wants about "just because we ignore the subject doesn't mean we don't care," but it wears a little thin sometimes.

However, I think Frances makes the same mistake I did: U.S. citizens can be declared "enemy combatants," but only alien enemy combatants can have habeas stripped. Still very bad, but not blatantly unconstitutional like I first thought it was. Though I've seen some arguments that the Great Writ at common law ran even for aliens on English soil.
9.27.2006 11:34am
Commenterlein (mail):
The silence from the Volokh Conspiracy has truly been deafening. And there really is no excuse for it, not after describing themselves as a libertarian law blog. So sad.
9.27.2006 12:17pm
byomtov (mail):
I agree with Frances, Anderson, and Commenterlein. The lack of comment is amazing.

Yes, bloggers can post on whatever they like, but for a blog concerned with constitutional issues and individual liberties to remain essentially silent on these topics is quite remarkable.

Apparently, the prospect of the US torturing detainees, and keeping innocent people detained indefinitely with no recourse, on the President's say-so, troubles the Conspirators less than some vague statements by the UN on gun ownership.
9.27.2006 1:04pm
Anderson (mail) (www):
troubles the Conspirators less than some vague statements by the UN on gun ownership.

"Men of one idea, like a hen with one chicken, and that a duckling"--Thoreau, Walden.
9.27.2006 1:19pm
Luke 1152 (mail):
I have to say that I was somewhat surprised, too, that there haven't been more blogging at VC about the "detainee" issues.
9.27.2006 1:30pm
Justin (mail):
This isn't a liberterian blog. Being anti-tax and pro-gun doesn't make one liberterian. It's a non-socially-conservative conservative blog - economic conservatives + neocon conservative + pro-gun conervative.
9.27.2006 1:30pm
Neal R.:
Not to pile on, but I too have been surprised by the lack of commentary on these issues by VC bloggers. I appreciate that Orin Kerr has at least fostered discussion in the comments by posting links (without commentary) to press reports, but even he seems reticent to post his thoughts on the subject.

Of course, it's anyone's right to speak about or remain silent about any particular issues, but the silence on these issues does seem peculiar. I keep checking in here for some reasoned analysis on the legal issues (as opposed to the partisan rants one can find on the purely political blogs) and am continually disappointed.

I guess the best way to put it is that I hereby humbly request some substantive blogging about the pending detainee and interrogation bills from the VC. I respect your views, and wish you would share them with your readers.
9.27.2006 2:14pm
Anon. Lib.:
Thank you to Frances for making explicit what has bugged me a lot. One view is that VC contributors are faced with an unpleasant bit of cognitive dissonance: how to react when self-styled conservatives fall over themselves to pass a statute authorizing torture, indefinite detention and the aggrandizement of the executive. As a liberal, I see the failure of the Democrats to effectively oppose these bills—-or even to speak up—-as a breaking point in my party identification. I will generally support democratic goals but I won't identify myself as a democrat any more. I can't imagine how a principled conservative must feel—-knowing that the party he has identified and associated himself with is virtually unanimous in its desire to grant the executive unreviewable discretion to indefinitely detain anyone (the bill is not limited to non-citizens) and torture them. I'm sure it makes it difficult to speak up. But I think that if conservative intellectuals are to have credibility, indeed if conservative ideas are to have any credibility outside of true believers, intellectuals like VC needs to address these bills.
9.27.2006 2:56pm
Luke 1152 (mail):
Anon. Lib. - principled conservatives have been distancing themselves from the dimwitted theocon brand of "conservatism" for some time.

EV posted (somewhat testily) in another thread that he believed that VC's lack of posts on this subject was due to lack of expertise by many of VC's bloggers.

That may be so, but one hopes that legal academics might take an interest in the destruction of the most basic right of citizenship - the right NOT to be held indefinitely without charges or review. Not quite as sexy or interesting as putative loss of woodpecker habitat, I suppose.
9.27.2006 3:15pm
Daniel Chapman (mail):
Anderson: "Frances makes the same mistake I did: U.S. citizens can be declared "enemy combatants," but only alien enemy combatants can have habeas stripped."

Anon. Lib.: "the bill is not limited to non-citizens"

No mincing words there... someone has no clue what they're talking about.
9.27.2006 3:30pm
Anderson (mail) (www):
No mincing words there... someone has no clue what they're talking about.

The *bill* isn't limited to non-citizens; the question is whether the *habeas-stripping* extends to U.S. citizens.

Hilzoy at ObWi elucidates the known unknowns. And I'm hoping to see some clarification from Jack Balkin or Marty Lederman.
9.27.2006 3:43pm
Daniel Chapman (mail):
"I can't imagine how a principled conservative must feel—-knowing that the party he has identified and associated himself with is virtually unanimous in its desire to grant the executive unreviewable discretion to indefinitely detain anyone (the bill is not limited to non-citizens) and torture them."

I'm sorry... I figured the post I was quoting was recent enough that I could just copy the relevant clause and everyone would know the context. He was talking about the habeas-stripping provisions.
9.27.2006 3:46pm
Anderson (mail) (www):
Mr. Chapman, if you'll click the link to Hilzoy's comment, you'll see the problem as she framed it. But allow me to cut-n-paste:
I think there are two distinct issues. One: can the President detain any enemy combatant indefinitely? If so, then it's hugely important that the definition of 'enemy combatant' that these idiots are proposing to write into law with the barest gesture at debate is so vague and capacious, and one part of that is: it's important that it includes citizens. (Myself, I don't see the fact that 'enemy combatants' includes citizens as itself the bad part; it's what we do with that designation that makes it bad. But surely a citizen can be an enemy combatant. Think John Walker Lindh.)

Two: does the habeas-stripping part, in particular, apply to citizens, or only to aliens? This is my question. But Marty's clarification covers (1), not (2), while Jack Balkin, Kevin Drum, and others assert (2) that citizens could have their habeas rights stripped.
Now, all apologies, I've contributed to the murk by using "habeas-stripping" as a synonym for "indefinite detention at the Executive's pleasure" ... though for the life of me, I can't really tell the material difference between 'em.
9.27.2006 3:54pm
Daniel Chapman (mail):
mmmm kay... this will be my last post on the subject because I don't want to waste people's time watching us sail past us in the fog.

YOU said in your post at 10:34 AM that the "habeas stripping" only applies to aliens. Anon. Lib. later said that it applies to US citizens as well. ONE of you is obviously claiming a fact where none exists, or the issue could be murkier than either of you claim it is.

Seriously... I have no idea what you're getting at in your last response. I know what you meant by "habeas-stripping." Are you trying to say that it's still an open question whether US citizens can be "habeas-stripped" under the bill? If so, why not just come out and say it?

I have not read the bill (I suspect few have, honstly) and I have no opinion on whether it does or does not authorize indefinite unreviewable detention of US citizens. I was merely pointing out that two commenters made conflicting claims with no evidence to back them up.
9.27.2006 4:02pm
Anderson (mail) (www):
the "habeas stripping" only applies to aliens.

As stated in Section 7 of the draft bill.

Anon. Lib. later said that it applies to US citizens as well.

Well, no. Here's what Anon said, and you quoted:
unreviewable discretion to indefinitely detain anyone (the bill is not limited to non-citizens) and torture them
Nothing about "habeas," just "indefinite detention."

Now, you would think the two were the same, right? As I myself suggested. Hilzoy's comment, which I first linked and then quoted, explains the possible difference.

Are you trying to say that it's still an open question whether US citizens can be "habeas-stripped" under the bill? If so, why not just come out and say it?

Didn't I?
the question is whether the *habeas-stripping* extends to U.S. citizens.

Hilzoy at ObWi elucidates the known unknowns. And I'm hoping to see some clarification from Jack Balkin or Marty Lederman.
I appreciate that you may not have time to actually *read* people's comments, but then, perhaps you shouldn't take the time to comment on them, either?
9.27.2006 4:31pm
Daniel Chapman (mail):
OK I lied... I'll respond again to that one. YOU said that the "habeas stripping" provisions do not apply to US citizens, then quoted ANOTHER person saying that it's still an open question. I was wondering which one you really believe. If you believe it's still an open question, why not just come out and say it?

Do you HONESTLY think that "unreviewable discretion to indefinitely detain anyone" does not mean "habeas-stripping?" Habeas Corpus is a method of reviewing detention, isn't it?

I think I gave your posts more attention than they deserved, honestly. Stop being a jackass.
9.27.2006 5:14pm
Anderson (mail) (www):
I think I gave your posts more attention than they deserved, honestly. Stop being a jackass.

Hey, can I borrow that?
9.27.2006 5:25pm
Arbusto Spectrum (mail):
Just a technical question -- how does one go about proving citizenship when your habeas has been stripped?
9.27.2006 5:35pm
Anderson (mail) (www):
Just a technical question -- how does one go about proving citizenship when your habeas has been stripped?

[Crickets chirping.]
9.27.2006 5:50pm
Broncos:
I concur with Frances, Anderson, Commenterlein, Byomtov, Luke 1152, and Neal R. Personally, my favorite contributors to this site are Orin and Eugene. I find them consistently incisive, principled, and yet measured. But their suprising lack of commentary about these proposed bills, given that they probably comprise what will prove to be the *major* post-9/11 civil liberties developments (more than the PATRIOT Act), kind of tarnish the whole experience for me. It's sad when what you *don't* say reflects poorly on what you *do* say.

I will note that Orin has previously posted on the surveillance issues, but I am not sure if the current bill comports with our previous knowledge. It would be nice to have his take on this, at least. I know he has the expertise. Even if they must ignore everything else. Maybe they're just busy. But then they might want to prioritize.
9.27.2006 6:24pm
Luke 1152 (mail):
I've spent about 4 hours today trying to answer for myself the question of whether an American citizen can be declared a enemy combatant and stripped of habeas rights.

I haven't been able to find an answer. Apparently the bill is undergoing constant amendment and there are multiple, competing versions of it out there.

In any event, the answer to that question won't help people like Maher Arar - that is innocent people who have undergone months of torture by our government. (And, yes, I know he was actually tortured in another country, but the blood is on our American hands.)
9.27.2006 6:29pm
Anderson (mail) (www):
I've spent about 4 hours today trying to answer for myself the question of whether an American citizen can be declared a enemy combatant and stripped of habeas rights.

Which, by itself, is kind of creepy, no?

But glad to hear I'm not the only one puzzled. I am keeping an eye on Balkinization to see if they address this.
9.27.2006 7:03pm
Anon. Lib.:
Just to clarify my earlier comment. In connection to the indefinite detention of citizens, I was referring to the broad discretion granted to the executive to designate anyone as an unlawful enemy combatant based on criteria the administration selects. Such a designation gives the president authority---pursuant to his commander in chief powers during wartime---to detain a designee indefinitely. A citizen could bring a habeas claim but he would be almost certain to lose because the administration has discretion to determine the criteria for his detention and the petitioner would have to show that the administration misapplied, ignored their own rules (about which their interpretation is accorded significant deference), or that the criteria are so ridiculous as to be an abuse of discretion. I am basically following the argument made by Marty Lederman on balkinization earlier today.

Anyway, it strikes me that the discussion on this thread of whether or not the statute strips citizens of the right to bring a habeas claim is a little beside the point. That detail does not make or break the advisability or the morality of this legislation. Indeed, it is not even close. Lets not let the trees distract us. The bill is monstrous, it is being pushed by a supposedly "conservative" administration and its party allies, and abetted by cowardly "liberals". Everyone who cares about individual dignity and the rule of law should make their opinion known---irregardless of whether or not they are "experts." This is a very important issue and it is not one that is difficult---even for a lawyer---to understand.
9.27.2006 7:39pm
Anderson (mail) (www):
Everyone who cares about individual dignity and the rule of law should make their opinion known---irregardless of whether or not they are "experts." This is a very important issue and it is not one that is difficult---even for a lawyer---to understand.

Amen, Anon.
9.27.2006 7:49pm
Elais:
I find this site.... neat in that there legal commentaries about various legal ssues. If no one has anything to say, at least you can read what some legal experts have to say.
9.27.2006 11:57pm
Elais:
Ooops, here is the link.

Findlaw.com
9.27.2006 11:59pm
byomtov (mail):
The bill has now been altered to strip (non-citizen) legal residents of the US of their habeas rights.

Let us hear no more about how Republicans and conservatives are suspicious of government power. The bill is plainly monstrous, as Anon Lib terms it, yet it has widespread support on the right.

Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.

What conclusions can we draw from this remarkable acquiescence - which we can reasonably assume - by law professors, some of them experts in Constitutional law, to arbitrary, indefinite, and unchallengeable detentions?
9.28.2006 11:10am
JosephSlater (mail):
Beyond the substance, I would be interested in comments on what to me seems like an increasingly cynical and destructive use of the very process of law-making to gain partisan advantage. There is no question that the timing of this bill is designed to put Dems in a box -- vote against it, and they'll be accused of being "soft on terror" in a vote barely a month away from the elections.

Of course there's a long-standing and inevitable practice of trying to get some pork back home before an election. But the Republicans have gone from the party of the gimmicky proposed constitutional amendment they didn't really think would pass (anti-flag burning, anti-gay marriage, term limits, etc.), which is bad enough, to a party apparently willing to sacrifice fundamental principles of our legal system simply as an election ploy.
9.28.2006 11:26am
Anderson (mail) (www):
Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.

Byomtov hits the nail on the head.
9.28.2006 11:48am
Fran (mail) (www):
Japanese Americans circa WWII must pinching themselves.

The thought that another admin of the US Govt would resort to extra constitutional measures to protect the citizens and assets of the country is amazing.

The distance between 'the founding fathers' and those currently in power is increasing at an exponential pace.

How sad.
9.28.2006 3:40pm