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The Military Commissions Bill, and A Note on Blogging Topics:
Congress is very close to passing a bill on military commissions to try terrorist suspects, which amounts to Congress's response to Hamdan v. Rumfeld. The bill text is here.

  In the comment thread in a recent post, a number of commenters took the VC's blogggers to task for not blogging about the bill and its predecessors. Here's a taste:
(1) 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." . . . . Don't you lawyers have anything at all to say about this? Any opinions at all?

(2) 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.

(3) 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.

(4) I have to say that I was somewhat surprised, too, that there haven't been more blogging at VC about the "detainee" issues.

(5) 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. . . . . 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.

(6) 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.
  I can't speak for anyone else, but here are a few thoughts of my own in response.

  First, I would really like to blog some expert commentary about these bills. But there's a problem: I don't know much about them. I have read what others have said about them, and occasionally link to commentary that seems particularly good (to the extent I can tell). I recently looked over the latest text to get a feel for what the bill is trying to do. But I haven't followed this area closely enough, as I've been busy with other stuff like my book that's about to come out, a few articles I'm writing, some pro bono cases, teaching classes, advising students, moving to Chicago for the semester, blogging about other things, and, well, life. I don't feel comfortable pretending that I know more than I do about the detainee legislation, so I haven't blogged much about it.

  Plus, from a normative perspective, I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right — and not clear to me how to choose between that baseline and others. Then there are all the empirical questions about what techniques actually work, predictive questions like how the trials will work in practice, what the effect to different language in the bill might actually be, what the Supremes might do, what the alternatives are, etc. Some people know the answers to all of these questions, or at least think they do, but I feel a lot less confident. Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.

Related Posts (on one page):

  1. Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
  2. The Military Commissions Bill, and A Note on Blogging Topics:
Anderson (mail) (www):
First, I would really like to blog some expert commentary about these bills. But there's a problem: I don't know much about them.

I'm sure that I'm not the only reader who appreciates your addressing this topic--thanks.

Possibly you can understand why, even if we're mistaken, ordinary people would expect a noted expert in criminal law and procedure to have some sort of opinion, however qualified and limited, on an issue like the stripping of habeas corpus, or at least on the legal and historical importance of habeas rights in general. From your end, it probably looks different.
9.28.2006 7:38pm
OrinKerr:
Thanks for explaining, Anderson. My only experience with habeas is as a law clerk, so you're right that I see that as separate from crim pro.

On the merits of the habeas question, though, I think it's a baseline problem. My best understanding of the law is that the idea of any habeas rights for non-U.S. citizens held outside the U.S. was mostly unheard of throughout our history. See Eisentrager. The Supreme Court changed course in Rasul in 2004, but what to make of that -- was that a radical expansion of habeas protection that the current bill tempers, or is the current bill a radical retreat from the rights recignized in Rasul?
9.28.2006 7:46pm
riptide:
Okay, then, how about a yes or no question? As you're aware, Glenn Greenwald has a blog where he does discuss those topics - he and you have disagreed on occasion. How do you view his analysis of the current proposed bill, which puports to giove the President the ability to strip habeaus corpus rights from US citizens?
9.28.2006 7:46pm
OrinKerr:
Riptide,

I'm not sure what your question is. How do I view it? What does that mean?
9.28.2006 7:49pm
Anderson (mail) (www):
At least, anyone alarmed by today's news and turning to the VC will not find a post on "pet law" topping the page. Thank God for small favors.
9.28.2006 7:55pm
Dan28 (mail):
This is what Andrew Sullivan is saying about this bill:

How do I put this in words as clearly as possible. If the U.S. government decides, for reasons of its own, that you are an "illegal enemy combatant," i.e. that you are someone who

"has engaged in hostilities or who has purposefully and materially supported hostilities against the United States,"

they can detain you without charges indefinitely, granting you no legal recourse except to a military tribunal, and, under the proposed bill, "disappear" and torture you. This is not just restricted to aliens or foreigners, but applies to U.S. citizens as well. It can happen anywhere in the U.S. at any time. We are all at potential risk.

Whatever else this is, it is not a constitutional democracy. It is a thinly-veiled military dictatorship, subject to only one control: the will of the Great Decider. And the war that justifies this astonishing attack on American liberty is permanent, without end.

I'm not saying he's necessarily right (although I think he is). But nevertheless, given that the stakes of this issue are potentially this high, isn't it important for those who see themselves as important social commentators to at least voice their opinion one way or the other? Coping out on what appears to be the most important legal issue of our day seems a little lame.
9.28.2006 7:56pm
Nick Patterson (mail):
OK. Is it true that under this bill any person, whether or not a US citizen,
can be detained indefinitely by Presidential order?

If this is true, isn't it exactly what Magna Carta and Habeas Corpus were
designed to prevent?

Nick Patterson
9.28.2006 7:59pm
JohnAnnArbor:
Andrew Sullivan is a first-order moral narcissist. He makes broad claims to show the world how good he is, and to make sure that all who disagree with him know that he thinks they're no better than the Nazi SS.

His act is getting old.
9.28.2006 8:00pm
kelvin mccabe (mail):
I didnt think the habeus stripping part of the bill was addressed at all to U.S. citizens - - rather, only to "aliens." Thus, resident aliens can be disappeared and tortured but not lawful resident "citizens". And this happens only if you are found to be an enemy combatant or are waiting to be declared one by some commission set up to put people in your situation in jail so they can win the war on terra. You dont have a green card and a political enemy do you?

I think the distinction ( between alien and citizen) is a correct one to make when writing the statute, since a law suspending habeaus corpus to full citizens would be inconsistent with article 1, sec 9 clause 2 of the constitution: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Has there been a rebellion yet? And if not, why not?
9.28.2006 8:01pm
Just an Observer:
As a mostly off-topic but not entirely unrelated aside, I note that the House version of the FISA amendments (the Wilson bill) is on the verge of passing on the floor this evening. The bill is on the floor now, or likely will be as soon as the closed rule passes.

Meanwhile, Judge Taylor today refused to extend her stay of the injunction in ACLU v NSA beyond a seven-day grace period to allow DOJ to seek a stay in the Sixth Circuit.
9.28.2006 8:06pm
Luke 1152 (mail):
Orin - thank you for addressing this.

Unfortunately, from what I have read - it's over. The final amendments were being voted down on party lines and Bush will have bill to sign very soon.

I am ashamed of my government today.
9.28.2006 8:07pm
Christopher Fotos (mail) (www):
Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.

Oh come on, Orin. It's moral depravity. Duh.
9.28.2006 8:08pm
laurence rothenberg:
readers' complaints about the VC not addressing the subjects that the readers want the VC to address and instead writing about what the VC wants to write about, seem about as meritorous as the complaints by the Spring Valley NAACP against the Orthodox Jewish-owned medical clinic that closes on the Sabbath discussed on this very blog a few days ago.
9.28.2006 8:17pm
Fub:
Orin Kerr wrote:
Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.
Well, since this is the intarweb, it's got to be moral depravity. Or maybe a conspiracy... Oh wait!

Seriously though, it's a big bill and an analysis is a big task. While I wasn't among those clamoring for one, it would be wonderful to see one when and if you have time and inclination. But the Conspiracy will remain one of my "must reads" even if you don't have one posted by tomorrow morning.
9.28.2006 8:23pm
Mark Field (mail):
I find it hard to accept the "lack of expertise" argument. What "expertise" did anyone bring to the Mozart thread? What "expertise" is involved in the British homosexuality thread? What "expertise" is offered in the Leon Kass thread? The Millenial Kids thread?

The answer, of course, is "none". Instead, what they all have in common is the use of basic reasoning skills and moral judgments. I don't see how the torture bill is any different. I found the silence pretty remarkable.
9.28.2006 8:25pm
Luke 1152 (mail):
rothenberg - forgive me for thinking that legal professionals and commentators might be expected to take an active interest in whether or not their government sanctions torture or imprisoning people without charges and without review.

I understand that such matters are not as pressing or important as discussions of woodpecker habitat or musings about NYT photo caption conspiracies and the like, but one would hope that such things might make it onto the radar screen.
9.28.2006 8:35pm
Karen A. Wyle (mail) (www):
I am no expert on detainee law, the Geneva Conventions, or any similar topic. I have seen only the House bill, and don't know if I've seen the very latest version of that. But what I have seen is quite disturbing. Any person -- not just an alien -- can be designated an unlawful enemy combatant -- with the avalanche of procedural deprivations that comes with that designation -- by a "competent tribunal" set up by the President or the Secretary of Defense, with no further guidelines. (The language about engaging in or supporting hostilities is an alternative to the determined-by-competent-tribunal language.) Statements extracted by torture are inadmissible -- except that if the degree of coercion is "disputed", it's up to the judge, with some rather fuzzy guidelines to follow. There's more along the same lines.

This is wrong.
9.28.2006 8:38pm
OrinKerr:
Mark Field,

If an analysis of the bill requires only basic reasoning skills and moral judgments, please present your analysis of the bill. I would appreciate citations to the bill text and relevant caselaw, as well, so we can best follow your basic reasoning and moral judgments. Also, while you're at it, could you throw in an analysis of the different NSA bills?

Thanks!
9.28.2006 8:40pm
Mark Field (mail):

This is wrong.


Exactly. And it takes no expertise to know it.
9.28.2006 8:43pm
Constantin:
Does anybody think we're not going to torture terrorists, regardless, in efforts to elicit information that will prevent future attacks?

The thought that we will actually helps me sleep at night. I'm not saying that to be crude or ironic or funny. I really mean it.
9.28.2006 8:44pm
larry rothenberg:
no, luke, I will not forgive you for thinking that other people have to spend their personal time doing what you want them to do.
9.28.2006 8:47pm
OrinKerr:
Mark,

I was kind of hoping for analysis, not a conclusion. What is the effect of the different sections, how this compares to the law pre-Rasul, that sort of thing.
9.28.2006 8:49pm
OrinKerr:
Oh, one more thought --

If you would like to hire me to conduct a legal analysis of the detainee bill, I am available. I think my consulting rates are pretty reasonable, for what you're getting. And of course I would be happy to post the result at the VC. If you're interested, just send me an e-mail.
9.28.2006 8:52pm
A. Rickey (mail) (www):
While a polite "I wonder what the VC bloggers think?" would be understandable (and even complimentary), some of these comments are really quite presumptuous. There's a pretty traditional method of getting legal advice from a lawyer: it's called the attorney/client relationship, and often involves a retainer. Are one of the commentors above offering?

Last I knew, I'm a reader here, but I don't pay Prof. Kerr's salary.
9.28.2006 8:52pm
MPVA:
Touche' to Orin.
It seems some commenters miss the point that the contributors to this blog are legal professionals, and that they want to be sure they do "what they do for a living" as accurately and coherently as possible. Nobody cares if law profs spout off about generational labels and end up sounding silly. But when legal analysis is your stock in trade, and you're not a raving partisan or a dilettante, you might not want to let rip without actually knowing what you're talking about.
That's the mark of a serious person, not a moral degenerate.
9.28.2006 8:53pm
M. Lederman (mail):
It's simply not true that the VC bloggers have not blogged about the bill — well, about the topic of legalizing torture, anyway. From the thousands of things written online about this topic, Eugene has singled out one that is "much worth reading": http://makeashorterlink.com/?D28F41DDD
9.28.2006 8:55pm
Steve Brady (mail) (www):
Orin,

I don't think most people are shocked at the lack of super in-depth analysis. But the bill is, potentially, a huge infringement of [some uncertain (considering how often they change the bill in question) group of people's] personal liberties. On a blog with over a dozen authors, many of whom are into that sort of thing, it was pretty shocking to see just about nothing on this major piece of legislation.

You've had guest-bloggers here before, haven't you? None of y'all know someone who knows habeas?
9.28.2006 8:55pm
Mark Field (mail):

If an analysis of the bill requires only basic reasoning skills and moral judgments, please present your analysis of the bill. I would appreciate citations to the bill text and relevant caselaw, as well, so we can best follow your basic reasoning and moral judgments. Also, while you're at it, could you throw in an analysis of the different NSA bills?

Thanks!


Hm. Sarcasm. It would have been more effective if you had pointed out where all that information was supplied in the other threads I referenced.
9.28.2006 8:55pm
Mark Field (mail):

It's simply not true that the VC bloggers have not blogged about the bill — well, about the topic of legalizing torture, anyway. From the thousands of things written online about this topic, Eugene has singled out one that is "much worth reading":


Now THAT is effective sarcasm. Subtle, too.
9.28.2006 8:59pm
OrinKerr:
Mark Field,

No, I'm totally serious. I say this is hard, you say it is easy. If it is easy, then stop talking about it and just do it. Why wouldn't you?

Steve,

I agree that this would be a great topics for a guest blogger. Eugene?
9.28.2006 9:05pm
Daniel S (mail):
Any blog makes decisions what to write about and that is the bloggers' perrogative. I don't think that any of us will argue that.

I think that the bloggers' choices convey information about the bloggers, their backgrounds, their beliefs and their interests. I think we can also agree on this.

With those two basic assumptoins, I think it has been surprising that this bill has had such a low profile here. The implications are huge, the discussion elsewhere, informed and not so informed has been considerable, and I think many of your readers have looked to VC for some insights.

I think the low profile of this clearly important and perhaps unique legislation does leave me scratching my head. I have to be honest and say that, while I certainly don't think that you have a responsibility to me or your other readers, the dearth of discussion raises a number of questions in my mind. Perhaps just about the relative value judgements of what is and is not important.
9.28.2006 9:07pm
Luke 1152 (mail):
You know, I don't think I have ever seen ANYONE suggest that they pay the salary of VC bloggers or ANYONE suggest that they are not "getting their money's worth"

Why so touchy about this? If the comments bother you so much why not just turn them off? That way you won't be bothered by all of the ungrateful readers.

Of course, everyone here understands that anyone is free to blog about whatever they want, that people have every right to blog about woodpecker habitat, what their cat had for breakfast, their 10 favorite Shaft episodes, whatever.

Perhaps the thing that troubles some readers is the lack of comment and concern about the "detainee bill" is that it means that either a) you don't care about it, or b) you agree with it, or c) you don't know anything about it. Each of those is troubling in different way.

It's a bit like reading a blog by, say, astronomers and rocket scientists in 1969 that didn't mention anything about the moon landing. Yes we all understand that those hard working scientists are not obligated to post a single word about the fact that man is walking on the moon.

Stated differently, as fascinating as it is to read another of Mr. Bernsteins posts about what is happening in the housing market in northern Virginia (I have counted 7 of those) I still like to think that one might encounter some attorneys here who have something interesting to say about the most significant legal issues of the day. Not that you are obligated to do so of course.
9.28.2006 9:12pm
kelvin mccabe (mail):
This is the language i read that made me think this habeus stripping business applied only to non-citizens (note this is found in section 6 of the bill, entitled "Habeus Corpus Matters":

(a) In General- Section 2241 of title 28, United States Code, is amended--

(1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and

(2) by adding at the end the following new subsection:

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

Did i miss something hidden elsewhere in the bill that says no u.s. citizen can file habeus petitions if declared enemy combatants? I admit i didnt read the whole bill...but it seems the section devoted to habeus matters would of covered it.
9.28.2006 9:13pm
Andrew Hyman (mail) (www):
I dare say that this is the best post I have ever seen at the Volokh Conspiracy, which has had many great posts.

Blogger humility. Blogger restraint. Blogger open-mindedness.

Excellent, excellent, excellent.

It may be the best of bills. It may be the worst of bills. It may be both.

But let's not jumpt to conclusions.

Excellent.
9.28.2006 9:14pm
M. Lederman (mail):
Kelvin: The habeas suspension applies only to aliens (including those in the U.S. and its occupied territories). It's the definition of "unlawful enemy combatant" that extends to citizens as well -- and most people are construing it to authorize indefinite military detention of anyone DoD desginates as an UEC. More details here:

http://makeashorterlink.com/?G5FF43DDD
9.28.2006 9:19pm
Mark Field (mail):

If it is easy, then stop talking about it and just do it. Why wouldn't you?


I have been, of course. Here (see the Rauch thread) and elsewhere as well. Maybe it'll be enough for me to avoid relegation to one of Bobby Kennedy's "hottest places of hell".
9.28.2006 9:25pm
Mikkel (mail):
Glenn Greenwald and Balkinization (despite their own disbelief) came to the conclusion that Andrew Sullvian sums up as "Legalizing Tyranny" and people are debating on non-fringe sites whether this is the worst bill of all time or merely the worst one since the Alien and Sedition Acts. I have yet to read one legal analysis that disagrees with them (the closest is saying that it's not set in stone, if the Executive acts correctly it's no big deal) and just reading their interpretation has caused me to question whether I should stop my entire life to try to fight this, or whether I should start thinking about leaving the United States in case it comes to that. I came here because I was looking for something -- anything -- about this issue and was aghast to find it wasn't even mentioned at all. Quite frankly, I've heard murmurs about this for at least a month (although to be fair the worst provisions where recent edits made only after the "compromise") and don't see how anyone could not be interested in at least finding out whether the proclamations Greenwald has been making are true. All that the readers are doing is saying VC is a respected source that is sidestepping what some other respected lawyers are calling a defining moment in history and underlying most of the implorations is subdued but growing fear.
9.28.2006 9:25pm
Mark Field (mail):
Prof. Lederman, your links aren't working. I believe your last one is intended to direct readers here. The first one was to the Rauch thread further down the page at VC.
9.28.2006 9:28pm
kelvin mccabe (mail):
And for the record, i dont care what you guys blog about or when. Most of us are not retired, so it does not bother me in the slightest that people dont have free time to analyze this comlicated matter instantly as it rushes through both houses of congress. What is shocking, deplorable, and almost inconceivable is that the members of the Senate and House, whose job it is to be both knowledgable and informed about such matters as pending bills, dont know anything about it either or are misinformed of the legal ramifications stemming from the bill. (here i allude to the Republican senator who said he voted against spectre's amendment on preseving habeus because the federal court system would get too clogged with frivilous suits by detainees!)

[Edited by OK]
9.28.2006 9:31pm
kelvin mccabe (mail):
Thank you Marty for the clarification.
9.28.2006 9:37pm
MnZ (mail):
I have to say it is difficult for me to get up in arms when many people who are telling me to get up in arms obviously don't have their facts straight.

The proposed law clearly states that habeus corpus would be denied to aliens, not citizens.
9.28.2006 9:42pm
A.S.:
It's the definition of "unlawful enemy combatant" that extends to citizens as well -- and most people are construing it to authorize indefinite military detention of anyone DoD desginates as an UEC. More details here:


Of course, citizens could be determined to be unlawful enemy combatants since, well, forever. See Quirin.

So that is not a change to anything; it's always been the case.

The issue is, if the President declares you an unlawful enemy combatant, what can you do about it? If you are a US citizen, you can try for habeas relief. If you are not a US citizen, you are stuck going through the military commission and then can appeal to the DC Circuit.

That's my understanding. Of course, I could be completely wrong.
9.28.2006 9:42pm
byomtov (mail):
Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges,

I don't think this is true. At least some opponents just want things like:

No torture

The right of detainees to see the evidence against them, challenge it, and present evidence of their own.

Not giving the President the unquestionable right to have people detained.

These are not complex issues.

While I appreciate your taking the time to post on this, I think you are refusing, intentionally or not, to see the forest for the trees.
9.28.2006 9:43pm
Anderson (mail) (www):
The make-a-shorter-link thing is cool, though.

Thanks to Prof. Lederman for clarifying the "indefinite detention" bit, though it remains very unclear just what it means, and what material differences (if any) there are between "indefinite detention at the Executive's pleasure" and "loss of habeas."

And on the post's topic, I think Luke 1152 puts it better than I ever did: the VC can blog what they like, &the rest of us can draw conclusions from that. Possibly the wrong conclusions, but not frivolous ones.
9.28.2006 9:43pm
Steve Brady (mail) (www):
The habeas suspension applies only to aliens (including those in the U.S. and its occupied territories).

And that last part, which Rasul says includes Gitmo, seems to violate the Constitution, in that we have no rebellion or invasion. And it unarguably takes away something those particular aliens currently have.

Perhaps someone could discuss that?
9.28.2006 9:44pm
Steve Brady (mail) (www):
Also, tinyurl.com might work better, as it doesn't involve any redirecting.
9.28.2006 9:44pm
Tom Holsinger (mail):
MnZ,

Facts are less important where faith is involved. This makes it difficult to address real legal issues.
9.28.2006 9:49pm
Martin Morgan (mail):
Longtime lawyer/lurker who just registered to say the lack of commentary on this issue has been absolutely craven, akin to idly standing outside a bar and watching someone get beat up by thugs.

Ok, you're careful professiorat types; whatever. You're also presumably informed Americans. You're damn straight more informed than any Senator who actually voted today.

Speak up or slink off in shame. On this issue, silence is complicity.
9.28.2006 9:51pm
MnZ (mail):
Anyways, I will make one flippant remark and then sign off.

My grandparents house was nearby a WWII POW camp for Germans. The nearby courthouse must have been a busy place hearing all of those habeas corpus pleas.
9.28.2006 9:51pm
A.S.:
BTW, since people are demanding that the Conspriators blog about this or that, I am demanding that Orin blog his analysis of the proposed IRS regulations under Section 409A of the Internal Revenue Code (enacted in the American Jobs Creation Act of 2004).

I eagerly await the response, and am horrified that this important topic has been less than fully blogged about on the VC!
9.28.2006 9:51pm
Andrew Hyman (mail) (www):
Mark, I believe you should have said JFK instead of Bobby.


"Dante once said that the hottest places in hell are reserved for those who in a period of moral crisis maintain their neutrality."


----President JOHN F. KENNEDY, remarks in Bonn, West Germany, at the signing of a charter establishing the German Peace Corps, June 24, 1963

Some (like me) may find it ironic that JFK probably got his attribution wrong too. At least, so says Wikipedia.

Whoever originated this quotation obviously never visited Washington D.C., a hell maintained by certain politicians who in a period of moral crisis insist on maintaining their polarity.

In any event, I'm sure that Orin Kerr will replace his neutrality with an intelligent position one way or the other, once he's studied this new legislation.
9.28.2006 9:55pm
Mark Field (mail):
Thanks, Andrew. I was going off memory and thought it was Bobby.
9.28.2006 10:03pm
ShelbyC:
Huh. Typically, in a state of war or insurrection, an 18-year old member of the executive branch looks out, sees someone, and makes a judgement as to whether or not they are an "ememy combatant." If he belives they are, he shoots them. Enemy combatants simply aren't usually afforded alot of due process.
9.28.2006 10:07pm
Anon. Lib.:
Thank you for the post Professor. I think this very post---which only discusses your hesitancy to address these issues---is a worthwhile contribution in its own right. And I would suggest that it would have been good to see it a week ago.

I would hope that you should rethink your view on expert commentary. As a practical matter, intelligent non-experts can often bring a fresh approach to issues that they don't know a lot about. Moreover, I think that limiting yourself to "expert commentary" is an intellectually and personally stultifying habit. I'm sure that you have interesting opinions about many things about which you cannot claim "expertise." Over-privileging expert opinion can undermine that. And I think it is an especially bad habit when it comes to moral reasoning. As a general matter, one should not be so wary of making an "incorrect" or "non-expert" moral judgment that one finds oneself tacitly condoning injustice. The recent debates about torture and indefinite detention---not to mention other longstanding preoccupations of the legal intelligentsia---concern our moral values and what, if anything, "American values" mean. And as a public intellectual, I think it is important for you to acknowledge that this moral dimension exists and to struggle with it---even if you never come to any definitive conclusions.
9.28.2006 10:09pm
OrinKerr:
Mark Field,

I haven't seen your analysis. Could you post a link here?
9.28.2006 10:11pm
Andrew Hyman (mail) (www):
[I]t is possible that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting).


---Justice Thomas, dissenting in Hamdi v. Rumsfeld

Justices Thomas and Black understand the term "due process" as well as anyone in my lifetime.
9.28.2006 10:13pm
byomtov (mail):
one should not be so wary of making an "incorrect" or "non-expert" moral judgment that one finds oneself tacitly condoning injustice. The recent debates about torture and indefinite detention---not to mention other longstanding preoccupations of the legal intelligentsia---concern our moral values and what, if anything, "American values" mean. And as a public intellectual, I think it is important for you to acknowledge that this moral dimension exists and to struggle with it---even if you never come to any definitive conclusions.

Yes.
9.28.2006 10:14pm
Glenn B (mail):
Orin, you call for analysis in the face of a network of secret eastern european torture prisons and the kidnapping of innocent canadian citizens for the purposes of torturing them in syria. I would hope you could see why that looks dubious at best.
9.28.2006 10:17pm
OrinKerr:
Glenn, I don't understand what you are saying.
9.28.2006 10:24pm
A.S.:
And as a public intellectual, I think it is important for you to acknowledge that this moral dimension exists and to struggle with it---even if you never come to any definitive conclusions.

Yes, I too request this acknowledgment and struggle. And your analysis of the Section 409A proposed regs! And a pony!
9.28.2006 10:25pm
Daniel Chapman (mail):
"At least some opponents just want things like:

...

The right of detainees to see the evidence against them, challenge it, and present evidence of their own. "

I can't speak for anyone else, but I have a serious problem with this. Don't you see how badly this would compromise intelligence gathering efforts? Have you thought about it? Do you care?
9.28.2006 10:26pm
OrinKerr:
byomtov,

How do you square American values with waging wars?
9.28.2006 10:27pm
JohnO (mail):
The beauty of free markets is that you guys blog about what you want. If people are interested uin what you blog about, they'll come here. If they don't, they can go to other blogs that interest them more.

It strikes me as ridiculous to suggest that the Conspirators have a duty to blog on any subject, or that they should be expected to blog on any particular legal issue. I could imagine the Conspirators not blogging on the detainee bill because so much is being said about it elsewhere, or because they haven't studied the bill enough, or because they are saving their analysis for another forum, or just because they'd rather post about better ways to search Lexis/Nexis.
9.28.2006 10:39pm
Glenn B (mail):
Let me put it this way: you have a duty as a citizen, or more importantly, as a human being. Posters on this blog have a curious habit of going silent whenever this administration conducts its latest outrage on human dignity. Is the absence of any specific post definitive? Certainly not. But there is a pattern (one which I would actually ascribe much more to your cobloggers than you, so you are catching a degree of unfair guilt by association here) of this blog refusing to engage with evil when it is practiced by the administration.

I have no problem with people begging off because they simply don't have anything to say on an issue. But to consistently beg off in the face of a certain class of enormously important moral questions is, as I said above, dubious.
9.28.2006 10:40pm
anonVCfan:
As long as the commenters are piling on, I'm shocked and appalled that none of the VC bloggers have stopped by my apartment to do my laundry and write my bench memos for me.

And while you're at it, please tell me what to think on all of the complicated legal issues in the news. I have a JD and I'm quite literate, but you have a blog and are therefore at my service.

Get over yourselves, people. If you're as morally outraged as your comments suggest, get off of the internet and start calling your Congressman. Or change out of your bathrobes and go bug them in Washington.
9.28.2006 10:41pm
Mark Field (mail):

Mark Field,

I haven't seen your analysis. Could you post a link here?


A link? The Rauch thread is here on VC. Other posts I've made are mostly at Balkinization (a few at Greenwald). I recommend you read all the threads there. If you don't find my efforts adequate, maybe the others will suffice. Or maybe you'll see someone who might guest-blog the issue.
9.28.2006 10:45pm
anonVCfan:
Mark Field, I read the Rauch thread. A bunch of rants with little detail and saying little more than "slavery is like torture" doesn't qualify as "analysis."

If you've got something else, please let me know. Prof. Kerr has asked you several times for an analysis, and so far you've demurred. If you've got something anyone's missed, hyperlink it, please. The interface on this blog isn't very difficult to use. If the stakes are as high as you say, I submit that you have a responsibility to do this.
9.28.2006 10:56pm
MarkM (mail):
There are two separate questions here. One is if the removal of habeas corpus is constitutional and the other is if it is a good idea.

My inexpert opinion is that it is probably constitutional to strip non-citizens of their ability to seek habeas corpus relief in civilian courts. What counts as a rebellion or invasion is most likely one of those things that is left up to Congress's discretion and cannot be challenged in court.

Whether it is a good idea or not is a different issue. There are plenty of non-citizens living in the U.S. and it seems to me that this bill would pose a grave threat to their rights. This is not to say I think the U.S. will start arbitrarily "disappearing" foreigners. Rather, it gives the U.S. an enormous amount of leverage to force non-citizens to cooperate with the government and even perjure themselves to testify against suspected terrorists. Some people would probably do anything to avoid the prospect of being declared an enemy combatant and locked up forever. And if you are not an enemy combatant it is not clear that you would be able to convince a military court of that given the vague standards and lack of oversight involved.

I do sympathize with people who argue that prisoners of war apprehended abroad should not be able to clog our civilian court system with endless appeals. However, I think there should be a finer distinction between say, a guy who has run a halal butcher shop in Queens for the past 10 years and a suspected Taliban apprehended in the mountains of eastern Afghanistan who has no connection to the U.S. Additionally, given that the "war on terror" is supposed to never end in any of our lifetimes I think there should be some outside scrutiny over the detention of enemy combatants. How much is a question I don't know how to answer, though.
9.28.2006 10:59pm
Realist Liberal (mail):
anonVCfan~
If you're going to express outrage over the bloggers not doing your laundry then why not go all the way and express outrage over them not cleaning your whole house? Apparently, a lot of commenters expect the professors to immediately know everything.

In all seriousness, though, as a liberal I often disagree with the legal conclusions of most of the bloggers here. However, one thing that I have always appreciated is that the posts are thought out and well reasoned. There are no knee-jerk reactions. Unfortunately, most blogs are filled with knee-jerk reactions with little actual thought or analysis. This is true of left and right leaning blogs. That is why VC is and will always be my favorite legal blog (unless of course Prof. Kerr decides to start his own blog back up in which case there will be a tie).
9.28.2006 11:02pm
Bob from Tenn (mail):
I appreciate your post, and your obvious disinclination to jump up and down without knowing what you are talking about. I found most interesting your comment: "I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right..." I concur, and I start from the opposite baseline. Unlawful combatants have no protections under the Geneva Convention, and could/should be simply shot out-of-hand (or after a drumhead court-martial). (Yes, there is a requirement to hold a hearing in order to determine that this status applies, otherwise, there are no specifics as to what "rights" the detainee has at the hearing. Or we could do what the French did: Kill them all and let God sort it out.
9.28.2006 11:02pm
RBG (mail):
Okay, okay. It appears that a relatively large number of folks believe that the "torture" bill is a gross constitutional travesty, betrays our history, and violates our core values. At least one has questioned whether he/she can remain in this country in the face of such appalling legislation. One question: Where in the world would you go? Are other governments likely to provide you with greater rights than reflected in this legislation? Certainly not the British, nor, from what I've read (cursorily, I admit), the French. And definitely not the Japanese. Canada? Australia? Where else?

This bill may very well violate American values, but I suggest that it's important to keep things in perspective.
9.28.2006 11:03pm
OrinKerr:
Mark Field,

Can you round up your best analysis and post the parts here together, or at least provide links (you can get the link for VC comments on the top right of the comment)? That would be great. I'll make you a deal: you round up the comments, and I promise to read them.
9.28.2006 11:07pm
Jake (Guest):
The claim seems to be that the Conspirators have a duty not only to analyze the bill, but in fact to come to the right conclusion on the bill.
9.28.2006 11:07pm
the reason for our disappointment:
One reason people might find so remarkable this blog's failure to comment on the legislation involves its political context. This was clearly, even admittedly, a political effort by the White House and its Congressional allies to jam Democrats before the '06 elections. Bush announced the relocation of the al Qaeda members previously held by the CIA to Gitmo, and then gave a speech calling for the immediate passage of his tribunal plan, with the implied threat that KSM et al. would have to be released if Congress did not enact its plan. Of course, up to this precise point, the Administration had rejected every effort by Congress (see, e.g., the Leahy-Specter bill in 2002) to authorize military tribunals. Its turnaround on this point was done for transparent political motives, much as its turnaround on the homeland security department was done for political motives in 2002. And from that point on, the Administration and its spokesman used every opportunity to frame the issue politically, in an effort to paint the opposing party as soft on terrorism.

Given this background, and given the highly problematic nature of the legislation being pushed by the Adminsitration, one might expect law professors with a certain degree of intellectual integrity to resist this concerted effort to advance politics over principle, at the expense of the U.S. legal system. One might expect law professors with a certain expertise in related issues (separation of powers, criminal procedure, the Bill of Rights, etc.) to do some background research about the legislation and to use this blog, as effective a public platform as most have, to discuss the objective merits of the proposed legislation. One might even expect that a law professor who had concerns about the bill -- say, its suspension of habeas corpus rights, or the effort to rewrite Common Article 3, or its endorsement of secret evidence, or its effort to degrade the longstanding bipartisan consensus against torture and cruel treatment -- might even express those concerns publicly, regardless of his political affiliation and interests.

Furthermore, even if the law professors who write on this site aren't concerned about the substance of the proposal, it's still clearly one of the most significant pieces of criminal and terrorism legislation being considered by Congress in the last 50 years. One might expect that a professor who supports the legislation would write a paragraph or two defending his support on the merits, explaining why it's such a good thing for America, or why the critics have it all wrong.

What did we get from the VC, on this topic? Nothing. Observations about the real estate bubble, Lexis search tips, posts about recent lower court rulings. Nothing about the bill, its merits, the relevant existing law, or the political context.

The professors who post on this site made a deliberate decision not to engage this issue. They made a decision not to use their expertise and stature to shed light on what's happening in Congress, whether they support or oppose it. In the face of an extraordinary challenge to the rule of law in this country, they chose to write about trivia, or about nothing at all. They sat this battle out.
9.28.2006 11:07pm
zooba:
kelvin mccabe:
The due process clause of the 14th amendment speaks of persons, not citizens, even if the habeas corpus clause does not distinguish. Courts have interpreted a right to habeas corpus and the right to have an article III court determine that case.
9.28.2006 11:09pm
Mark Field (mail):

Mark Field, I read the Rauch thread. A bunch of rants with little detail and saying little more than "slavery is like torture" doesn't qualify as "analysis."


Perhaps you could detail for me what would qualify as "analysis" in your mind. If I have to meet your test, I think it's only fair that I know what it is.

I'm especially interested in two things: the additional "analysis" you'd perform to show that torture is an American value; and the amount of "analysis" in my posts as compared to the "analysis" contained in the several other threads I mentioned in my first post in this thread. When those tests are met, I'll get back to you. I'm holding my breath; it's good practice for waterboarding.
9.28.2006 11:10pm
Realist Liberal (mail):
P.S. I'm outraged that Prof. Kerr, a professor at a school that I don't even go to, wouldn't give me any advice for my law review article. Oh wait, he actually did.
9.28.2006 11:10pm
Realist Liberal (mail):
Mark Field~
Analysis generally means intepretting- fairly- the language of the statute, discussing how it will probably be implemented, any constitutional infirmities it may have (with specific cites to appellate course cases that support your position and those that don't) and the implications of the law (again honestly and avoiding platitudes). I'd be curious to see you or anyone for that matter do that type of analysis on the bill. I know full well that I'm not qualified to do it.
9.28.2006 11:14pm
OrinKerr:
The reason for our disaapointment:

Do I wish my co-bloggers had blogged about this, whether they were for or against it? Of course -- that would have been great. But what would you guess is the percentage of law professors who have publicly commented on this bill? Maybe one-half of one percent? Perhaps less than that? If there is blame to be had, let's blame everyone, not just the folks on this blog.

Realist Liberal:

Wait, I can't remember: was your article the one that proposed replacing our government with a fascist regime run by Dick Cheney?

Mark Field:

Links, please!
9.28.2006 11:17pm
zooba:
The statute just seems to be directly designed to overule Hamdan and set up Hamd3.0 v. US: Kennedy waxing eloquently about the due process and suspension clauses as applied to aliens.
9.28.2006 11:18pm
Mark Field (mail):

Mark Field,

Can you round up your best analysis and post the parts here together, or at least provide links (you can get the link for VC comments on the top right of the comment)? That would be great. I'll make you a deal: you round up the comments, and I promise to read them.


There's an important difference between comments in a thread and a blog post. In the former case, the dialogue is ongoing and free-flowing; context is critical. A blog post can be organized in advance and read independently. It's the difference between a speech and a cross-examination. That's why reading the actual thread makes more sense. That said, I will do it. It may take me a bit.
9.28.2006 11:18pm
Steve:
Of course, citizens could be determined to be unlawful enemy combatants since, well, forever. See Quirin.

An excellent argument. I wish more supporters of the present legislation would clearly state that they consider Ex Parte Quirin to be a shining star in our galaxy of jurisprudence.

Some background here, including an account of how the man responsible for revealing the plot to the FBI ended up getting sentenced to death as a result of the tribunal procedure the Court approved, all because the FBI wanted to claim credit for catching the bad guys. But that's only one side of the story; the conservatives all love this case, just as they love its sister decision.
9.28.2006 11:24pm
Roland Stephen (mail):
Qui tacit consentire
9.28.2006 11:25pm
NickM (mail) (www):
Why is it that the people posting the most often about how this bill and/or this administration is pro-torture also have the broadest definitions of torture? There was a list of 8 activities posted to a thread here months ago, with the assumed most severe being waterboarding. I think if you asked the average American, that would be the only one from the list they considered torture - not making a detainee stand for days on end, not putting a detainee in a cold room and dousing him with water, not slapping him, not yelling at him, etc.

Considering that the Supreme Court has this year reaffirmed the historic proposition that a captured person the U.S. military says is an enemy combatant can be kept in a POW camp with no right to any heaaring until some future leader of Al Qaeda decides he's really not interested in getting 72 virgins and convinces his followers to join him in surrendering, this bill has little actual legal importance. It's mainly a political symbol.

Nick
9.28.2006 11:26pm
Mark Field (mail):

Analysis generally means intepretting- fairly- the language of the statute, discussing how it will probably be implemented, any constitutional infirmities it may have (with specific cites to appellate course cases that support your position and those that don't) and the implications of the law (again honestly and avoiding platitudes).


Not responsive. And please note that not a single one of my posts contains the word "analysis" or criticizes the lack thereof. I only commented that the "lack of expertise" argument didn't make much sense in light of numerous other posts here which didn't rely on "expertise" at all. In short, I was rejecting ONE of the explanations offered, and nothing since has shown that I was wrong.

Apparently I hit a sensitive point, given the efforts since to change the subject.
9.28.2006 11:26pm
Just an Observer:
Steve,

You said "the conservatives all love this case," referring to Ex parte Quirin.

Does Antonin Scalia count?

In his Hamdi dissent, Scalia wrote about Quirin: "The case was not this Court's finest hour."
9.28.2006 11:34pm
JohnAnnArbor:
Hmph. So, if this bill were NOT law, what would be the logical action of a soldier capturing some thug that had just killed two of his buddies and three Afghan children?

Your choices:
A. Capture him, put him through the system, and watch as he gets his own Johnny Cochran to plead his case for the next ten years, as college campuses run teach-ins on his "resistance to colonialism" or whatever; or
B. Pull the trigger.

Which is the more logical choice?

Now that they know captured terrorists won't be coddled, they can capture enemy fighers alive without thinking they're creating a grave liability for whoever has to deal with his case later.
9.28.2006 11:35pm
jgshapiro (mail):

Bush announced the relocation of the al Qaeda members previously held by the CIA to Gitmo, and then gave a speech calling for the immediate passage of his tribunal plan . . . Of course, up to this precise point, the Administration had rejected every effort by Congress [t]o authorize military tribunals. Its turnaround on this point was done for transparent political motives.

Um, maybe it was done as a result of the Supreme Court's decision in Hamdan? Up until that point, the administration maintained that it did not need Congressional approval to implement the tribunals.

You might want to get your facts straight before you embark on a motive-hunting adventure.
9.28.2006 11:45pm
Matt Tievsky (mail):
It appears that every commenter who finds the "silence" of the Conspirators "remarkable" and thinks it "raises questions" or implies certain "conclusions" (what these are is curiously left unsaid) is beginning from the assumption that this bill is an obvious travesty of justice.

Well, Orin has already stated that he doesn't find it so obvious, and I suppose the other Conspirators feel similarly. And the commenters treating this non-rush to judgment as evidence of unseemly motives are being arrogant and simple-minded. Orin's absolutely right about the difficulty of setting a "baseline"--and I say this as a general War on Terror skeptic.
9.28.2006 11:47pm
Matt Tievsky (mail):
Mark Field: I only commented that the "lack of expertise" argument didn't make much sense in light of numerous other posts here which didn't rely on "expertise" at all.


MPVA already addressed this:

MPVA: Nobody cares if law profs spout off about generational labels and end up sounding silly. But when legal analysis is your stock in trade, and you're not a raving partisan or a dilettante, you might not want to let rip without actually knowing what you're talking about.

I agree with him. This describes how I tend to behave (as a law student).
9.28.2006 11:53pm
jgshapiro (mail):

I only commented that the "lack of expertise" argument didn't make much sense in light of numerous other posts here which didn't rely on "expertise" at all.

This is simply not true.

No one is going to quote Adler's opinions on the Sunday song lyric or Bernstein's posts on Israel or the VA housing market in any publication, and it is doubtful that they would even be quoted in another blog. There is no risk in such a post for them because they are obviously outside their area of expertise, so they are just offering lay opinions on topics of interest to them.

But others might quote for publication their (or any other VC blogger's) hypothetical post on a legal question, since that is what they do for a living. Therefore, there is more professional risk to the VC bloggers in getting something wrong when posting on a legal topic than when posting on a non-legal topic. That means it should take more time to put such a post together, especially if the issues are complex.

Think about it: if Henry Kissinger (to pick someone with apparent topical expertise) started a blog post on his favorite Beatles song, some might find it interesting to read, but who really cares? Kissinger has no apparent musical background or expertise. But if he posted on what he thought was the right strategy to pursue in Iraq, lots of people would care and they would doubtlessly dissect and quote his post. So, he'd better make sure he gets his facts right.
9.28.2006 11:59pm
Daniel Chapman (mail):
Good point, jgshapiro.
9.29.2006 12:00am
Katherine (mail):
The lack of a baseline thing is quite a cop-out, I think. You don't need to compare CSRTs to U.S. criminal trial to realize that they're grossly inadequate.

Unless you're saying you don't know what the CSRTs involve. But, how long ago did Judge Green make her decision?
9.29.2006 12:01am
Henry679 (mail):
It would seem elemental that importing concepts like the "enemy combatant" of In re Quirin--where you had a declared war, with a definite starting and ending date, between nation states with fixed borders--into our present troubles is a great source of potetnial mischief. Lazy analogies to WW2 should be the stuff of the Bill O'Reillys and Michelle Malkins of the world.

In the present conflict (I refuse to use the term "war" unless it is Constituionally correct, which it sure as hell isn't here), we have no conceivable ending date, an enemy with no definable borders, and, consequently, no clear set of elements to help us understand where this "bright line" of who is an enemy combatant lies--and it MUST be a bright line if draconian measures like that embodied in the current legislation are in play. And the concerns many have are magnified by the genuinely sloppy arguments made by many "conservatives" about all the "treason" they perceive around them--at the New York Times or wherever. It's easy to shrug off such idiocies now--but wait until there is another substantial terrorist attack.

This country stinks of fear and panic, and those who wish us ill can sense it. Bush's "win" today is another pyrrhic victory. Acting obviously frightened is the greatest emboldening and recruiting tool we can give terrorists. And make no mistake about it--the legislation passed today absolutely reeks of fright.
9.29.2006 12:02am
Jake (Guest):

It would seem elemental that importing concepts like the "enemy combatant" of In re Quirin--where you had a declared war, with a definite starting and ending date, between nation states with fixed borders--into our present troubles is a great source of potetnial mischief.


So the Justices knew at the time Quirin was decided when hostilities with Nazi Germany would be over? Remarkable.
9.29.2006 12:07am
Anonymous Liberal (mail) (www):
Just for the record, Orin, that post by "Anon. Lib." was not by me. I've got to get a more unique handle. :)
9.29.2006 12:08am
Daniel S (mail):

It appears that every commenter who finds the "silence" of the Conspirators "remarkable" and thinks it "raises questions" or implies certain "conclusions" (what these are is curiously left unsaid) is beginning from the assumption that this bill is an obvious travesty of justice.


Yes, those of us concerned about the lack of discussion of this legislature should instead throw around explicit accussations of VC being administration toadies.

Of course not. I think that many of us are honestly concerned, indeed worried. I think that many of us are frustrated at, what many people have pointed out, the ill-informed debate in many other sources. Its that frustration that is coming out in this discussion. We (at least not I and it seems many others) are not attempting to attack OK or others here, but its been extremely surprising to not see much thought on a matter of such import. Note that this frustration is also due to the fact that the time course of this legislation was not one to allow slow calm contempletion. Rather it was railroaded through both houses. So, rushing to judgement isn't necessarily the best idea but given the circumstances, it might have been better than no judgement.

In many things, timing is everything.
9.29.2006 12:08am
Frank J. (mail) (www):
After reading through this sludge, I've come to the conclusion that the Volokh Conspiracy has a lot of whiny commenters who should be dragged off to a secret prison and tortured. Unfortunately, I don't understand the bill well enough to know if that's allowed.

But one can hope.
9.29.2006 12:27am
Just an Observer:
I generally don't buy into judgments that "So and so failed to speak out [for | against] such and such a controversial position," so put me down as agnostic on that one. I have my own sympathies and opinions on some of the complex detainee issues, and if I had to vote up-or-down in Congress today I would vote against the bill, but I do not consider myself an expert on all the legal issues. (Few of those voting are.)

As a fairly regular reader, I do hope for more postings by Orin on a parallel and timely issue associated with the "war on terror" in which he obviously is a qualified expert: the FISA legislation. I note that he posted a couple of times last week on the subject, soliciting knowledgeable comments. I also note that the call did not get a huge response from the general VC commenting community.

So as long as we commenters are in the business of prioritizing Orin's time, I respectfully would make the request about the surveillance issue instead. On the detainee issues, there is critical analysis available in other quarters -- thank you, Marty Lederman and others. But there is a relative dearth of recent analytical material on the detail of the FISA amendments. Much of what there is has been provided by our host.
9.29.2006 12:28am
Tom Holsinger (mail):
The historical ignorance shown by many posters here is significant evidence of the wisdom of this board's bloggers in avoiding the subject.

The Algerian War of Independence was the major campaign in the past 100 years where torture materially affected the course and outcome of the conflict. AFAIK, I'm the only poster on blogs who has EVER mentioned that conflict in discussions of the war on terror.

Complaints and speculation about American use of torture in the war on terror are inane given the real thing as practiced by the French in Algeria.

Orin Kerr and Ilya Somin are entirely correct in avoiding a subject which is so obviously used by most posters here as a vehicle to express their personal issues.
9.29.2006 12:32am
Mark Field (mail):

No one is going to quote Adler's opinions on the Sunday song lyric or Bernstein's posts on Israel or the VA housing market in any publication, and it is doubtful that they would even be quoted in another blog. There is no risk in such a post for them because they are obviously outside their area of expertise, so they are just offering lay opinions on topics of interest to them.


I think this is a fair response to my criticism (and others made it too; I didn't ignore you -- this post was closest). I disagree because the morality of torture -- "alternative techniques", if you prefer -- is not an area of legal expertise either, so it would seem to fall into your category. I think that was clear from my first post, though you certainly made it clearer than I did.
9.29.2006 12:41am
Steve:
Does Antonin Scalia count?

In his Hamdi dissent, Scalia wrote about Quirin: "The case was not this Court's finest hour."


My comment, obviously, was overly glib and you were correct to call me on it. Mainstream legal conservatives like Scalia reject Quirin, of course, in practically the same breath as they repudiate Korematsu.

The problem is that, somehow, the prevailing theories of the day seem to have veered a long way from mainstream legal conservatism. It's depressing when people cite Quirin, not as an object lesson in what the exigencies of wartime can produce, but rather as a legal milestone, a case to be cited for an undying legal principle that has supposedly been accepted "since, like, forever."

What today's conservatives truly seem to love is not so much the legal principles of Quirin, but rather the underlying narrative of a President who declares he's going to fight the bad guys his way no matter what anyone else says. Imagine, FDR actually sent an emissary to the Supreme Court to warn them that he was going to have the saboteurs executed either way, so they better think twice about the resulting crisis before ruling against him! What supporter of the present administration wouldn't love President Bush to give the same sort of middle finger to Justice Kennedy? Taht's the real point of citing Quirin.
9.29.2006 12:47am
Mark Field (mail):
Ok, here are those of my posts which I could find. I did this out of courtesy to Prof. Kerr, but frankly I don't see the point. As I said, the issue here is whether "expertise" is a prerequisite to posting about a subject. Obviously it isn't; just read my posts:































9.29.2006 12:51am
Just an Observer:
Steve,

I confess to a little glibness myself. And I agree that in general there is a disconnect between mainstream legal jurisprudence and much of what passes for legal theory justifying this administration's "war on terror."

Having said that, there are nuances. For example, I suspect Scalia also might disagree with Sen. Specter's assertion on the Senate floor that the constitututional right to habeas corpus extends to non-citizens.
9.29.2006 12:57am
Mark Field (mail):
Well, damn. That didn't work. Let's try again:

One

Two

Three

Four

Five

Six

Seven

Eight

Nine

Ten

Eleven

Twelve

Thirteen

Fourteen

Fifteen

Sixteen
9.29.2006 1:00am
OrinKerr:
Thanks, Mark. Most of your posts don't seem to relate to the actual bill, it seems, but to respond to two points in your posts that do: I agree with your point in #1 that the bill is difficult to follow, and I think you ask an interesting question in #12. Re #12, I'm not sure what it means for a legislature to say as a matter of statutory law that the executive's interpretation is "authoritative." Is that a legislative request for the courts to consider it a political question?
9.29.2006 1:12am
BAC (mail):
Henry679 (mail):
"In the present conflict (I refuse to use the term "war" unless it is Constituionally correct, which it sure as hell isn't here)..."
Senator Biden disagrees with that:

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House.
I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President."
http://biden.senate.gov/newsroom/details.cfm?id=229598&&
9.29.2006 1:28am
John Burgess (mail) (www):
I'm with Frank J on this.

I know it will come as a total shock (and no, I'm not accepting liability for any infarcts caused by this comment), but I doubt that I'm the only reader of VC who is not only happy with the way VC has handled itself in addressing this question, but also think that the Administration has it about right here.

The "fear" that everyone declaims seems to be limited to a segment of society. Being underwhelmed by the comments is the reason there are so many apparently silent VC readers.
9.29.2006 1:49am
jgshapiro (mail):
Mark:

I disagree because the morality of torture -- "alternative techniques", if you prefer -- is not an area of legal expertise either, so it would seem to fall into your category.

Yes, but the reason (I presume) you would want Orin's opinion on the bill is because of his legal expertise, as that expertise is relevant to the tribunals or the bill attempting to authorize them.

Why, in contrast, would you want his opinion on the morality of torture? He is not, to my knowledge, an expert on the morality of torture, or anything else. He is not a philosopher or public moralizer by trade. The same applies to all other VC bloggers.

The only reason I could see people pining for a post on this topic is because of its legal context as juxtaposed against the legal expertise of the VC bloggers. And it is that very legal expertise, together with the desire to preserve (enhance) their professional reputations, that would likely make them proceed with caution.
9.29.2006 1:54am
David M. Nieporent (www):
Mark:
Well, damn. That didn't work.
Yeah, but it made great irony.
9.29.2006 2:26am
JunkYardLawDog (mail):

Imagine, FDR actually sent an emissary to the Supreme Court to warn them that he was going to have the saboteurs executed either way, so they better think twice about the resulting crisis before ruling against him!



Wow, this definitely raises my opinion of FDR.




What supporter of the present administration wouldn't lve President Bush to give the same sort of middle finger to Justice Kennedy? Taht's the real point of citing Quirin.



His ratings in the polls would go up at least 5 to 10 percent almost immediately.


Why do so many libs here worry about Orin and VC bloggers posting on this when they can go read all the analysis they want directly from Harry Reid's personal gay brazilian ex patriot advisers or get the scoop for confirmation of just how much the sky is falling by visting the democratic underground or daily kos for commentary that is equally objective and accurate to that of anything Glenn Greenwald provides on his blog.

Says the "Dog"
9.29.2006 2:37am
Andrew J. Lazarus (mail):
I'll ask JunkDog the same question I did on the other thread: where is the battlefield? If it is the whole world, is it not the case that all of our Constitutional protections have become a dead letter?

The Administration, and its supporters on this thread, are playing mix-and-match with rules appropriate for combat and rules appropriate for everywhere else.

It must be exciting for JunkDog to feel he's in the front lines, although I have to say his political comments make me suspect he's just another dweeb with a mouth much bigger than his brain. And his balls.
9.29.2006 2:52am
JunkYardLawDog (mail):
Lazarus I just posted the answer to these same questions on the other thread. No need to repeat it here.

As for your variation on the tried and true chicken hawk childish name calling, I will respond in kind that its better to be a chicken hawk than a chicken shit.

Says the "Dog"
9.29.2006 3:05am
Tito:
Well, that didn't take too long.

Congrats, Orin. Within days of rejoing the VC, you've proven that you are a) mostly meaningless, b) a poor liar who is working hard to get out of a tight spot, c) disingenuos, and d) untrustworthy due to ideological corruption.

[OK Comments: Um, huh?]

Cheers!
9.29.2006 3:44am
Matt Tievsky (mail):
jgshapiro's last post beat me to the punch.
9.29.2006 4:15am
RDS (mail):
TO: Mr. Kerr &Volokh C.
CLASSIC CASE:
Paralysis of a trained academic, through over analysis...
Is Orin's nuanced deferral an example of why our nation is at the apex of anti-intellectual "thought"?

Please Orin, thou doth protest....much.
With the highest respect Orin: What does your civic gut tell you?
Make the call.
1.)Break down the central issues/questions narrow the question, establish acceptable tenets/parameters, and Take a Stand.

Here is your mirror:

I always get hung up ...but it's not clear to me that's right — and ...not clear to me how to choose Then there are all the empirical questions.... predictive questions....what the Supremes might do... what the alternatives are, etc. ...Some people know the answers to all of these questions,....I feel... less confident... my uncertainty...limitations...excessive caution....judgment left to the reader.


I am so confused.
If not you Orin,...them who?
9.29.2006 6:14am
Anderson (mail) (www):
I think if you asked the average American, that would be the only one from the list they considered torture - not making a detainee stand for days on end, not putting a detainee in a cold room and dousing him with water, not slapping him, not yelling at him, etc.

Why should we listen to the average American? How about paying attention to what victims of these tactics have said? There's enough in the Rauch thread to show that forced standing is torture. Hypothermia is a no-brainer--lowering someone's body temperature by 20+ degrees? Jesus.

Torture, historically, has been used to get false confessions. (See the David Corn link above.) Witch trials, Soviet trials, whatever. Why would anyone think it's a great way to discover the truth?

(Holsinger cites the French in Algeria, without once considering what the torture of Algerians did to the political prospects of the French. Remind me who rules Algeria now?)
9.29.2006 8:44am
Richard Aubrey (mail):
Anderson. Torture is used to get false confessions. True. But not complete. Surprised me, sure as shootin' you'd be incomplete on this.

You know that it has been used effectively to get useful information. That you cannot be forced to publicly admit it makes no difference to much at all.

It's not a great way to discover truth, but it is effective sometimes.

If it were demonstrably totally ineffective over history, nobody would bother with it, and so we would not be arguing about it.
9.29.2006 9:04am
Jake (Guest):

Why should we listen to the average American?

Ladies and gentlemen, the 2006 Democratic party platform.
9.29.2006 9:32am
Henry679 (mail):
<i>So the Justices knew at the time Quirin was decided when hostilities with Nazi Germany would be over? Remarkable.</i>

No, disingenuous Jake the Guest, they didn't--but they knew there would be a clear, definite end to hostilities in the near future. We know no such thing. Quirin, bad as it was, was at least a principle that would be limited in duration. We have no such assurances today--in fact, we are told quite the contrary by just about everyone.

And BAC--I have never cared what Joe Biden thought about anything. I pity you if you do.
9.29.2006 10:22am
Uncle Fester (mail):
I think a lot of this may be a debate about how many fairies can dance on the head of a pin. I have it in the back of my mind that the Geneva Conventions is set up so non-uniformed combatants can be executed as spies. In the off-chance that I am correct, what's to prevent the government from questioning them and then killing them when they are done?
9.29.2006 10:23am
Elais:
JunkYardDog,

Is there a real path in this bill for detainees to prove their innocence?

Surely you, of all people, do not assume that 100% of the detainees are guilty without a shadow of a doubt.

Without a shred of hope to prove their innocence or challenge their detainment, why bother with this kangaroo court? Bush might just as well shoot 'em all dead. Sure we might lose valuable information that 2 years at Gitmo haven't extracted, but the only good accused terrorist is a dead accused terrorist, right?

I want to see justice done and this isn't justice, this is mockery.
9.29.2006 10:35am
Andrew J. Lazarus (mail):
Richard Aubrey: Have you discovered a way of telling the true information obtained under torture from the false information? If so, patent it. If not…

I explained upthread, there are situations in which torture is useful. First, it can be a good tool for intimidating the victim population. Second, in situations where the torturers are willing and able to act on false positives, such as Stalin's purges, where I suppose it's possible some genuine plotters got killed along with millions of the falsely accused. Third, we are living in a country where the President used to blow up frogs by sticking firecrackers in their anus, and the Vice President likes to hunt farm-raised quail. Perhaps they need the videos of CIA torture interrogations to maintain enjoyment of their jobs. But as far as crippling Al Qaeda, because we don't have access to most of the terrorist pool (unlike Stalin) to throw out all the babies and the bath water, torture doesn't seem useful in the war against Al Qaeda.
9.29.2006 10:42am
Jake (Guest):

No, disingenuous Jake the Guest, they didn't--but they knew there would be a clear, definite end to hostilities in the near future. We know no such thing. Quirin, bad as it was, was at least a principle that would be limited in duration. We have no such assurances today--in fact, we are told quite the contrary by just about everyone.


Sorry for disingenuously providing context to your comment. But let's put aside the ad hominem attacks and focus on your claim: in 1942, the Justices knew that WWII would come to a clear, definite end in the near future. Is that your contention?
9.29.2006 11:01am
Henry679 (mail):
Yes, just like every other war between nation states had for the preceeding past several centuries. This is a revelation to you? Do you believe that people expected WW2 could last 30 or 50 or more years?

If you answer "yes", you are officially a troll.
9.29.2006 11:10am
Anderson (mail) (www):
During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.

I guess he felt he didn't have sufficient expertise to express a different opinion.
9.29.2006 11:41am
Steve:
Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as 'indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life...

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.
9.29.2006 11:44am
Anderson (mail) (www):
Steve: what becomes of that language from Hamdi, once the Congress *has* authorized indefinite detention?

--"The Congress has authorized indefinite detention." Damn. Sometimes I feel like I'm blogging in 1933 Germany.
9.29.2006 11:53am
JRL:

"Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges"


I asked this question all through law school and never got an answer. I've also asked on here numerous times without reply, and this comment by Eugene seems to back this up:

Is it anywhere determined that non-citizens are entitled to Constitutional rights? Take the Moussaoui trial for example--was he entitled to a jury trial under the US Constitution? Was he entitled to "due process" under the US Constitution?

So, officially, legally, whatever, are non-citizens afforded the protections under our constitution? I'm not asking morally. I asking legally.
9.29.2006 11:56am
JunkYardLawDog (mail):
Elais,

Your concerns are based upon a law enforcement approach to fighting a war. Such an approach was used by the Clinton administration and it yielded a failure to capture or kill Bin Laden when they had plenty of chances to so do and the extension of the Jamie Gorelick wall and similar ineffective war tactics that resulted directly in the 9/11 attacks being successful.

I do not support the law enforcement, common criminal, full USA citizen constitutional rights for the enemy in a war.

Providing these detainees with a military tribunal, instead of a bullet, is far more due process than ever previously provided to enemy combatants captured during a time of war.

Says the "Dog"
9.29.2006 11:59am
Steve:
Very good question. Perhaps Hamdi was, you know, a comma.
9.29.2006 12:02pm
Anderson (mail) (www):
Is it anywhere determined that non-citizens are entitled to Constitutional rights?

Yes. The Fourteenth Amendment speaks of "persons." Non-citizens are persons. And aliens are regularly held to enjoy the right to due process of law.
9.29.2006 12:03pm
Henry679 (mail):
Thank you, Steve.
9.29.2006 12:04pm
Mr. X (www):
While I appreciate your taking the time to post on this, I think you are refusing, intentionally or not, to see the forest for the trees.


Professor Kerr has followed this pattern in the past. The more fundamental the liberties addressed by a law or action of the President, the more detached and analytical he gets, focusing on procedure over substance. See also the warrantless wiretapping issue.

I'm a little at a loss as to why you'd expect something else.
9.29.2006 12:07pm
Broncos:
I was one of the people in the former comment thread that Orin referred to.

Just to be clear: I am not entitled to Orin's legal analysis. On the other hand, I'm not asking him to evaluate my slip-and-fall case for free over drinks. (and as far as paying his legal fees - how many potential billables have I frittered away reading this site? :> )

But there are at least two ways of looking at the situation on the site: (1) The contributers have concerns/thoughts/opinions, but are unsure of their conclusions due to a lack of expertise (though I will note, as I did in my comment in the other thread, that this doesn't apply to the surveillance bill); or (2) regardless of expertise, this just hasn't aroused the interest of the commenters.

It's the latter that disappoints me. On my own, after (long) days at the firm, I've looked into whether an individual might have an implied right of action for injunctive relief to enforce the separate, non-war crimes, "additional prohibition against cruel, inhumane, or degrading treatment." Generally speaking, I believe a good argument can be made that the 1st and 4th components of the Cort test are satisfied, and because I don't have free westlaw, I haven't been able to do real research into 2nd and 3rd components.

I've also done limited research into whether Congress can limit the ability of the judiciary to reason on the basis of otherwise-applicable authority, rather than simply abrogating that authority through statute; and whether Congress can divest the judiciary of the ability to definitively interpret a law (absent later amendment passing both houses and presented to the president), without divesting the judiciary over jurisdiction over that law. Again, however, I don't have free westlaw, so my research is quite limited, mostly composed of guesswork, and most probably wrong.

My point here is that if these bills are of concern to you, they will spur research that does not seem like drudge work. But my sense isn't that the contributers here have been thinking along the lines of "I think that maybe A,B, and C; but I'm not sure; is there anybody else there with more experience who can contribute to this?" (in which case, you may have posted something along those lines). Rather, I think that what has been posted has simply proven more interesting to the contributers.

And given that this is a libertarian law site, that is disappointing.
9.29.2006 12:07pm
JRL:
The quote is obviously from Orin, not Eugene.

And for the record, I have also tried to ask this on Orin's blog, but he wouldn't allow it to go through.

I feel likely there's some secret cabal out there as everyone I pose the question to ignores or simply will not offer an answer. It's really weird.
9.29.2006 12:09pm
JRL:

Yes. The Fourteenth Amendment speaks of "persons." Non-citizens are persons.



Not a very convincing argument. Not even really an argument. Persons could mean not business or organizations, could it not? Is the issue discussed in a case that you know of.
9.29.2006 12:11pm
JRL:
What about the 80 years before the 14th A. Are you suggesting the use of the word persons in the 14th amendment changed the application of the entire document?
9.29.2006 12:13pm
JosephSlater (mail):
I am sympathetic to Orin's position and appreciate his post. On the other hand, I wish more folks on this blog -- bloggers and commenters -- would address the point that The Reason For Our Disappointment made far upthread. Like it, dislike it, or unsure about it, this is a very important bill, and the way it was passed -- as a political tool for Republicans to try to use to bludgeon Democrats in the weeks before an election -- is a scandal, given the importance of the rights at stake and the importance of determining the best way to fight our nation's enemies.

This is, of course, more damning of certain folks in government than on this blog, but it's a separate issue well worth discussing, IMHO.
9.29.2006 12:19pm
Anderson (mail) (www):
Not my field, JRL, but here:
This Court has held that the Constitution assures [the alien] a large measure of equal economic opportunity, Yick Wo v. Hopkins, 118 U.S. 356 ; Truax v. Raich, 239 U.S. 33 ; he may invoke the writ of habeas corpus to protect his personal liberty, Nishimura Ekiu v. United States, 142 U.S. 651, 660 ; in criminal proceedings against him he must be accorded the protections of the Fifth and Sixth Amendments, Wong Wing v. United States, 163 U.S. 228 ; and, unless he is an enemy alien, his property cannot be taken without just compensation. Russian Volunteer Fleet v. United States, 282 U.S. 481.
Harisiades v. Shaugnnessy, 342 U.S. 580, 586 n.9 (1952). Yick Wo dates back to 1886 &expressly applies the 14th to resident aliens.

Now, all this is of uncertain relevance to what can be done with nonresident aliens like the Gitmo prisoners; but I do believe your question's been answered. Rejoice!
9.29.2006 12:26pm
Josh Jasper:
I don't buy it. None of you has the slightest remorse about blogging as a non-expert when it comes to slamming liberals, or hammering home some Republican talking point while pretending to be libertarians.
9.29.2006 12:30pm
Anderson (mail) (www):
Are you suggesting the use of the word persons in the 14th amendment changed the application of the entire document?

A more academic question than I can answer, though changing the application of the entire document is indeed the sort of thing that an "amendment" might be expected to do.

Parts of the Bill of Rights, the Fifth Amendment IIRC, also refer to "persons," which however unconvinced you are, generally gets taken to have been chosen for a reason.

Yick Wo (unanimous op for the Court):
The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.
9.29.2006 12:31pm
OrinKerr:
JLR,

Your question is a very hard one; I have blogged about it before. The truth is, we just don't know how many constitutional protections apply in these cases. You have to take each constitutional provision separately, and when you do you find a surprising dearth of caselaw with anything like applicable facts. So thr truth is, we just don't know.

Also, sorry if you think there is a secret cabal that is keeping us from responding in a more timely fashion. No such cabal.
9.29.2006 12:32pm
Anderson (mail) (www):
JLR: So, officially, legally, whatever, are non-citizens afforded the protections under our constitution?

Kerr: Your question is a very hard one

Which question was that? Whether any given constitutional protection applies, has to be checked, and not all the answers are in; so on a specific application, it might be a hard question.

But the question I've just quoted is not a hard question at all, and since JLR doesn't seem terribly inclined to believe little old me, I wish an actual law prof would say "yes, JLR, aliens do indeed enjoy some constitutional rights."
9.29.2006 12:36pm
JRL:
Fair enough. The "secret cabal" was not the timeliness of the answer, but rather than nobody could provide an answer.

Anderson-

I note and appreciate your case cites. Thank you.
9.29.2006 12:42pm
Anderson (mail) (www):
Oops: JRL, not JLR, which now that I think about it is a Westlaw database.

You're quite welcome, JRL. Hope that answered at least your overarching question.
9.29.2006 12:47pm
OrinKerr:
Got it: Yes, JRL, aliens do indeed enjoy some constitutional rights. Exactly what rights is a very hard question, and you have to approach it provision by provision.
9.29.2006 12:51pm
Mark Field (mail):

Yeah, but it made great irony.


LOL. I noticed that too.


Most of your posts don't seem to relate to the actual bill, it seems


True enough. They were more on the general topic of how to define torture and the morality of that. In that sense, I saw them as similar to both the Kass thread and the Mozart thread.


Re #12, I'm not sure what it means for a legislature to say as a matter of statutory law that the executive's interpretation is "authoritative." Is that a legislative request for the courts to consider it a political question?


I'm not sure; I've never seen a clause like this before. As a general rule, courts have the power to construe treaties such that decisions by the Executive can be challenged in court. Japan Whaling Assn v. American Cetacean Soc., 478 US 221, 106 S. Ct. 2860 (1986).


Yes, but the reason (I presume) you would want Orin's opinion on the bill is because of his legal expertise, as that expertise is relevant to the tribunals or the bill attempting to authorize them.

Why, in contrast, would you want his opinion on the morality of torture? He is not, to my knowledge, an expert on the morality of torture, or anything else. He is not a philosopher or public moralizer by trade. The same applies to all other VC bloggers.


Well, again, I didn't actually ask for his opinion. I didn't do that in any other threads and didn't do it here. The ONLY thing I did was suggest that one of the reasons he offered for not having done so seemed inconsistent with the presence on VC of other posts which raised exactly the sort of philosophical questions you mention.

Your original comment to me suggested that such topics were "safe" because they didn't put in issue anyone's reputation as a law professor. Now you're taking what appears to me to be the opposite view.

Having said all that, Prof. Kerr's views on most topics are of interest even when I disagree. Isn't that why we all come here and post?
9.29.2006 12:59pm
srp (mail):
The depressing thing is that MarkM above had the only post that addressed the key issues without getting sucked into partisanship or ideological shadowboxing, and he was roundly ignored. So commenters, practice what you preach--it's not good enough to say "This bill is bad" without discussing the real policy issues and the real risks of abuse.
9.29.2006 6:17pm
Jennifer (mail) (www):
Yes, MarkM did - but only after being bludgeoned by OK to do so.
9.29.2006 7:41pm
NickM (mail) (www):
"I think if you asked the average American, that would be the only one from the list they considered torture - not making a detainee stand for days on end, not putting a detainee in a cold room and dousing him with water, not slapping him, not yelling at him, etc.

Why should we listen to the average American? How about paying attention to what victims of these tactics have said? There's enough in the Rauch thread to show that forced standing is torture. Hypothermia is a no-brainer--lowering someone's body temperature by 20+ degrees? Jesus. "

Responding in reverse order, the hypothermia you're describing doesn't come from dousing someone, but from immersing them in cold water. I personally think that if you have to keep a check on someone's metabolic functions to make sure they don't die, it is cruel treatment, and unacceptable. That's not the treatment I posited though.

As for why should we ask the average American, it's because I'd much prefer a community judgment to one person's on what constitutes cruel treatment. Call it a "current public meaning" method of interpretation.

Nick
9.29.2006 10:15pm
dvorak:
Anderson missed a bit from Yick Wo:

...The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights. In reference to that right, it was declared by the supreme judicial court of Massachusetts, in Capen v. Foster, 12 Pick. 485, 488, in the words of Chief Justice SHAW, 'that in all [118 U.S. 356, 371] cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right in a prompt, orderly, and convenient manner;' nevertheless, 'such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain, the right itself.' It has accordingly been held generally in the states that whether the particular provisions of an act of legislation establishing means for ascertaining the qualifications of those entitled to vote, and making previous registration in lists of such, a condition precedent to the exercise of the right, were or were not reasonable regulations, and accordingly valid or void, was always open to inquiry, as a judicial question. See Daggett v. Hudson, 3 N. E. Rep. 538, decided by the supreme court of Ohio, where many of the cases are collected; Monroe v. Collins, 17 Ohio St. 666.


So it seems non-citizens held as unlawful combatants, prisoners of war, etc have a right to judicial review but their Due Process does not require a civilian court if our Congress says they need to go through a military court.
9.29.2006 11:25pm
Anderson (mail) (www):
Dvorak, do you see the words "political right" in the excerpt you've quoted? What do you suppose that means? Did anyone suggest aliens were entitled to vote?
9.30.2006 12:54am
Anderson (mail) (www):
As for why should we ask the average American, it's because I'd much prefer a community judgment to one person's on what constitutes cruel treatment.

Well, sure. N.b. that the latter is what we have under the new law, with "one person" being the President.

But I would like to see the media and the parties trying to educate the average American about what these practices are, what they do, where they come from, etc.

In my own small way, that's all I can do on the topic, and hence my spending way too much time on this over the past couple of days.
9.30.2006 12:57am
Elais:
JunkYardDog

You never answered my original question. Is there a path for detainees to prove their innocence?

You say they shouldn't have full US rights like US criminals. What rights do they have then? What ability do they have to defend themselves if they cannot challenge the evidence, their captivity, the charges against them? The evidence maybe little more than hearsay and that's why Bush wants to give them a kangaroo court, because he knows he doesn't have a shred of evidence against some of the detainees.

I'm not willing to blindly trust that Bush actually has 100% pure and correct evidence as you appear to do.

I want to see justice done, for the guilty as well as the innocent at Gitmo and elsewhere.
9.30.2006 9:57pm
JunkYardLawDog (mail):
Elais

From my answer to similar questions in another thread on this:

1. Who determines who is an enemy combatant? The military, FBI, NSA, CIA, and even law enforcement, possibly under some circumstances, acting in and on the battlefield under rules of engagement established by the Commander in Chief and/or possibly Congress for that particular battlefield location.

2. What procedural rights do prisoners of war and enemy combatants have? An almost stupid question with regard to enemy combatants at a time of war. Again reflects a law enforcement approach to warfare that has never previously been applied to enemy combatants/prisoners of war. They have in general the right to be shot pursuant to the rules of engagement for that battlefield location. If taken prisoner/detained they have those rights and procedures established by the commander in chief and/or possibly congress.

3. Can Rumsfeld declare me or any person an enemy combatant from the confines of his D.C. office? Again a rather flimsy question based upon a whole series of ridiculous assumptions. Rumsfeld has the same rights to declare someone an enemy combatant as did FDR or his secretary of defense during world war II. In other words not really any such right. Nor would any rational person interested in winning the current war be worried about these kinds of angels dancing on the heads of pins type of ridiculous worries/questions. Enemy combatants are found/declared in general by engaging them in combat on the battlefield, intercepting their spies and infiltrators in the act of spying and infiltrating. The same way its been done for thousands of years. These aren't hard questions except to those who seek to make hard and complex what is relatively simple and straight forward.

Enemy combatants have only those rights and procedures available to them by the rules of war established by the commander in chief and/or congress through statute and treaty.

Questions of guilt and innocence are completely irrelevant for the enemy captured or killed on the battlefield or in counter war intelligence activities. They are the enemy they deserve to be shot. If lucky enough to be captured instead of being shot, they have no rights to challenge their detention, just like prisoners of war captured in world war II.

BUt but but but wait what if one of these poor captured prisoners isn't really a Nazi fighting for Hitler or a member of Al Qaeda, et al fighting as an illegal enemy combatant but was really some poor civilian shop keeper in Germany cooking dinner for the Nazi or Al Qaeda customers at the time he was captured? How does he prove he's innocent and should be released from prisoner of war camp or from Guantanamo or from a secret CIA prison???

Answer is he's doesn't. He's screwed. He is walking collateral damage at a time of war. Non-combatant civilians sometimes get killed during a war. They might be captured as the enemy at a time of war. They have absolutely no right to challenge their detention, either now or in past wars like world war II.

Shit happens in war. Its not pretty. Its not supposed to be pretty. Its not supposed to be law enforcement. It is not comparable to law enforcement against citizens of this country. Stop trying to make it what it isn't.

Its WAR!!!!!!! NOT CRIME. Shit happens in war. Collateral damage happens in war. It may be regrettable but it happens and the only way around it is to either win the war so the battle stops or surrender so the battle stops. Thoughts of trying to clean it up and make it a nice clean petty criminal law enforcement matter is just plainly ridiculous. War isn't fought by committee or by Judges who are wholly unqualified to protect the Union and the Constitution. That is a job given solely and entirely to the President.


Says the "Dog"
9.30.2006 10:36pm
Some Guy:
JYD,

yes, all of this is true--which is why, IMO, it's important to be very careful with illegal enemy combatants. They get the fewest protections of all (from what I can tell) so it is easier to make mistakes.

Let's put it this way--nobody wants to kill civilians in time of war. If they could prevent it, they would. But unlike other casualties, captured combatants--whether legal, illegal, or civilian--aren't sitting around waiting for a bomb to accidentally drop on them. Their captors (us) have all the time in the world to decide how culpable they are and how they should be treated. There really should be fewer accidents in a military prison than on the battlefield, don't you think?

They are no longer on the battlefield--they have been removed from it. They are goverened by a different set of rules than they would be if they were still on the battlefield.

Now, yes, they are subject to wartime military justice. But even then, I don't think it's right (and is possibly not legal) to treat all illegal captures equally--whether or not they have been formally charged, whether or not they have been convicted, etc. Surely we at least would want to treat detainees who have not even been formally charged more carefully than those who have been both charged and convicted of crimes? But we have little evidence that anyone is taking these distinctions seriously.

And then there is the question, of course, of whether we are still at war or not...but let's not get into that here.
10.1.2006 2:17pm
JunkYardLawDog (mail):
Some Guy,

I am not opposed to treating detainees/prisoners of war in accordance with the rules established by the President and/or Congress. What I am opposed to is granting them rights and privileges based NOT on the considered policies of the President and/or the Congress, but in accordance with criminal law procedures established by the courts and the constitution for citizens in run of the mill criminal law matters.

These detainees/prisoners of war are not criminals, are not entitled to criminal law procedures, are not entitled to any procedure in court or otherwise except as established by the Commander in Chief and/or Congress. Fighting wars and handling prisoners/detainees are the sole province of the Commander in Chief and in some circumstances the Congress. The judiciary and the constitutional rights of ordinary citizen criminal defendants have no role in this process, and in fact the judiciary has absolutely no competence in determining how detainees/prisoners of war should be treated.

Bottom line remains, detainees and prisnoners of war have absolutely no redress to civilian courts. They never had and they never should. Judges and the criminal law procedures are both wholly inadequate and incompetent to make decisions in this area. These matters are solely the province of thge commander in chief and sometimes Congress. If one doesn't like the decisions being made by the commander in chief in these matters than one should bring pressure to bear upon Congress to change the funding or one should seek to elect a democrat who will gladly declare defeat, surrender, and release all detainees. However, it is NOT the province of the judiciary to decide these matters and the more the judiciary attempts to meddle in these matters where they have no knowledge or authority the more the judiciary brings disrespect upon itself and its authority and opinions.

I am personally already to the point that I would whole heartedly support the president and/or congress in telling the Supreme Court to stick their opinions where the sun doesn't shine when these choose to ignore history and 240 years of precedent by choosing to interfere in the matters of war that wholly beyond their expertise and constitutional power. FDR had it right when he told the court he would ignore their opinions in these areas and so did Lincoln when he began incarcerating federal judges who refused to know their place in matters of war.

Says the "Dog"
10.1.2006 6:14pm
Elais:
JYD
WAR is indeed different than crime, but Bush seeking the detainee bill is ridiculous then right? If the law has no say during war, the all this foofaraw over detainees, secret prisons, is worthless. Why should bother Bush follow any rules at all? Who could force Bush to do anything?
1. Who gives the the military, BFI, NSA, CIA the right to determine who is an enemy combatant? God? The UN? The Flying Sphagetti Monster, The JunkYardDog?
It's like giving Bush the right to determine that the sky is red. Bush was not elected to be a dictator, Bush was not elected to be King. Bush was not elected to be God.
2. A stupid answer. Why shouldn't POW and enemy combatants have rights? Who gives Bush and Congress the ability to take away rights? It's like letting a bully determine the rules of when others should be beaten, do you think a bully would really care about the rights of his victims? We already know Bush disregards international law and the the Geneva convetions. Bush seems to be attempting to follow military conventions, even though he claims the detainees are literally beyond any law civil, international, or military. Why shouldn't we use a law enforcement approach, it doesn't have to be a mirror approach, but it has to be fair and just.



3 I am a perfectly rational person and I ask a perfectly rational question. You seem to refuse to pose any question at all to this detainee bill. Why on earth shouldn't I question my president and my congress over this? I'm not sheep.
I have never heard of enemy combatants until the so called war on terror. Can you point out all the instances of enemy combatants throughout the thousands of years of history? Retroactive lyredefining the meaning of enemy combatants to apply to as far back as the dark ages seems absurd.
Guilt and innocence is completely relevant. What's the point of capturing people if there is no ability to determine their if they are innocent? They are worthless as enemy combatants, as POWs or as prisoners. We shouldn't be able to hold them just because we can. It's like someone killing a two-year-old just because they can. It ain't right.
If anyone is captured by America, they are screwed? Boy, that really speaks well of us as a people and a country doesn't it? if anyone is captured by Russia, they are screwed, if anyone is captured by Al Queda they are screwed, if anyone is captured by Iran they are screwed. A lot of screwing around going on, isn't there?

Shit happens in war, war is not fun, war is not pretty, agreed. But war ends. World War I ended, World War II ended, the Vietnam War ended, the Korean War ended. How will this 'war on terror' be ended? How will Bush end it? If there are people on earth, there will be terrorists. Will this war end when everone on the face of the earth is dead? All wars have a beginning and and end, the war on terror is perpetual.

I care about the broader implications of this 'detainee bill' and the 'war on terror'. So should everyone, especially Bush.

We're gonna need a Gitmo the size of America if we continue this war on terror.

Says ME!!!!
10.1.2006 6:56pm
Tom Holsinger (mail):
JYD,

POW's do have recourse to the U.S. Supreme Court as part of the appeal process under the UCMJ. POW's are tried for offenses committed as POW's under the UCMJ. Among other things, POW's can murder each other the same as anyone else, and can be tried under the UCMJ for such offenses. As a practical matter, though, POW's are sometimes allowed to form their own military courts for such offenses, and try their own people.

But this discussion concerns unlawful combatants, not POW''s. Unlawful combatants have much broader protection under American law than they do under the Geneva Conventions, at least until the U.S. Supreme Court decides to interpret the GC broadly again.
10.1.2006 7:03pm
JunkYardLawDog (mail):
Tom,

I don't doubt your statements are correct, but the items you mentioned aren't really what is being discussed. POW's don't have the right to challenge the fact of or lawfulness of their detention in a U.S. Court, and it is this issue to which the discussion and my comments pertain. I see nothing wrong with trying a POW accused of murdering another POW either in a military court or as otherwise may be provided by the UCMJ or Commander in Chief/Congress.

Says the "Dog"
10.2.2006 12:01am
JunkYardLawDog (mail):
Elais,

You are making a policy argument about how should a war be conducted. That is your right to so do, but the policy of war fighting which you advocate is NOTHING like the war policies ever followed by the USA (or day say by any country in the history of the world) in any prior war. Further, I would advance that all your ranting about Bush the dictator and Bush the King are just plainly irrational responses to both war and the discussion at hand.

As has been pointed out many times, but those like yourself who appear to be suffering from BDS fail to ever acknowledge, the war on terror will end in the same manner as every other war. It is NOT perpetual. If enough people believe as you do they will elect a Congress that will be controlled by Democrats and the Democrats will undoubtedly declare defeat and then promptly surrender and withdraw from all meaningful fighting of the war on terror. At that point the war on terror will be over. We will have lost or more accurately surrendered. Further, the war on terror can be ended any time a Republican congress decides to declare victory and stop fighting and funding a fight.

Your claims of a perpetual war ignore the fact that Congress must approve spending for the war several times each year and Congress is free to stop funding the war and end it any time Congress so desires. So it is not Bush that gets to decide how long the war on terror lasts, as is implied by your statements on this issue, it is the PEOPLE through their elected representatives that decides, several times a year, whether the war is over or requires more funds to continue the fighting.

If you don't like how the people's elected representatives vote on continuing to fight the war on terror than I guess you could support a left wing coup to overthrow the democratic processes in this country and impose a real dictatorship in this country as opposed to the imaginary Bush dictatorship of which you seem to have such an irrational fear.

The enemy in a war has no rights in a criminal court and the day they are given same is the day we as a country begin a slow or perhaps not so slow suicide in the name of irrational non-self interest.

The detainee act was needed because 5 old farts on the Supreme Court decided to break with all past precedent, ignore a specific statute to remove jurisdiction for the case from the court, and meddle in the war fighting prerogatives of the Commander in Chief despite having no constitutional authority to so do. The decision of these 5 old farts on the Supreme Court in the Hamdan decision was one of the biggest violations of the constitutional system of separation of powers that this country has ever seen.


Bottom line remains, detainees and prisoners of war have absolutely no redress to civilian courts. They never had and they never should. Judges and the criminal law procedures are both wholly inadequate and incompetent to make decisions in this area. These matters are solely the province of the commander in chief and sometimes Congress. If one doesn't like the decisions being made by the commander in chief in these matters than one should bring pressure to bear upon Congress to change the funding or one should seek to elect a democrat who will gladly declare defeat, surrender, and release all detainees. However, it is NOT the province of the judiciary to decide these matters and the more the judiciary attempts to meddle in these matters where they have no knowledge or authority the more the judiciary brings disrespect upon itself and its authority and opinions.



Says the "Dog"
10.2.2006 12:22am
Anderson (mail) (www):
POW's don't have the right to challenge the fact of or lawfulness of their detention in a U.S. Court

Is this supposed to be an indication that our detainees shouldn't be given "more rights" than a POW?

I hope not, because that would be a frightfully inane argument.

A POW, by definition, acknowledges allegiance to a hostile power, and thus concedes his captor's right to hold him.

A non-POW, by definition, may very well be Just Some Guy, and thus has every need of due process to challenge his detention.

It's not hard, folks.
10.2.2006 11:39am
JunkYardLawDog (mail):
Anderson we agree on something. Its not hard. You just have an incorrect analysis.

Illegal enemy combatants are due LESS protections and NOT MORE protections than a POW.

If an illegal combatant is just some guy and not really an illegal combatant I've already answered that bleeding heart conundrum. The answer is the just some Guy is screwed. He is walking collateral damage in the war against these illegal combatants. He's at least better off than the DEAD collateral damage that happens in war.

The some Guy only has those opportunities to oppose his/her detention as are provided by the Commander and Chief and/or possibly Congress. They do NOT have nor should they ever have the right to challenge their detention in a USA civilian court.

It is impossible to conduct a war by judicial fiat and the chaos that would result from attempting to so do would be severely injurious to our ability to fight the enemy. That is why these war time matters are the exclusive province of the President and sometimes with input from Congress. The judiciary is neither competent to handle these matters or vested with authority to interfere in these matters which fall solely under the powers of the Commander in Chief and the Congress. For the judiciary to attempt to interfere in these matters is a violation of the separation of powers contained in the 3 branches of constitutional government.

War isn't pretty collateral damage happens. Its war not crime. Innocent people get killed in war and innocent people can, IN THEORY, be locked up as prisoners of war/illegal enemy combatants. That's the breaks. That's the way the cookie crumbles. So sad, too bad, bye bye.

It is a cold attitude but it is the only attitude that is applicable in WAR. If illegal enemy combatants were granted a right to sue in USA federal courts to challenge their detention (as insane as that thought is to most rational people) then what would be the rational to argue that the family members of the non-walking DEAD collateral damage not be allowed to sue for money damages for the wrongful death of their non-enemy combatant relative killed as collateral damage during battlefield operations???

The answer is that there is no rational distinction between arguing that enemy combatants can challenge their detention in court with the rights and procedures of a petty USA citizen criminal and arguing that the relatives of enemy combatants killed during battlefield operations should be able to sue the USA government for wrongful death or other damages theories.

And then continuing down this road of war time insanity if illegal combatants can challenge their detention in court and the relatives of dead combatants can sue for damages then why couldn't the relatives of dead combatants sue in federal court for an injunction to stop the war effort completely unless and until the USA federal government can guarantee they will never accidentally kill during battlefield operations an innocent non-combatant or never detain by mistake an innocent non-combatant.

Once full logic of court access and war is brought out its complete irrationality and incompatibility with the concept of fighting a war to win becomes quite clear.

You're right. Its not hard folks, so then why do you have the answers and policy judgments so irrationally wrong?

Says the "Dog"
10.2.2006 4:18pm
Elais:
JunkYardDog

I'm making a policy arguement? What the heck are Bush and the Republicans doing? Reading chicken entrails to determine how a war should be conducted? Aren't you making policy arguements yourself? Or are you simply saying 'anything goes'.

You claim that the war on terror will end. How? What will be the clear, shining symbol that the war is over? What document will terrorists/US sign that declares the war over?

Your assumption that Democrats will declare defeat is absurd. It shows how irrational you are when it comes to Democrats. I am Democrat and I am certainly not declearing defeat. What I am declaring is that the path pursued by Bush and Republicans with regards to the war on terror isn't exactly a resounding success. Why assume that only ONE path should be taken on the war on terror?

Both Democrats and Republicans want to defeat terrorism, the assumption that only Republicans are pursuing the 'one truth path' is ridiculous.

No way on earth will Republicans ever say the war on terror is over, the war on terror is the only way they can remain in power. Why would Republicans give up the most powerful weapon they have to get re-elected: fear? Given that you, Bush, Republicans tar Democrats as being 'cut and runners' is the best example how much Republicans depend on keeping a war on terror going.

So, one day, Bush will wave his magic wand and declare 'Misson Accomplished' and the war on terror is over? Will Bush claim he won? Bush sure as heck decided to wage a war on terror and he is the only one who can decide when the war ends. Congress is free to stop funding the war, but it cannot declare the war over.

? We can certainly vote democrats into Congress so we can regain the majority. But even a overwhelmingly Democratic Congress can't declare a war on terror over, only Bush can do that. Bush as unilateral power over how to conduct the war, doesn't he?

It is imperative to our self-interest and self-image that America must BE a just and moral nation. The day that an pow, enemy combatant, whatever, has literally no rights at all, we as a country descend from being a proud and mighty nation. Justice for ALL.

Those old farts on the Supreme Court are one of the few willing to put a check on the totalitarian acts of Bush and even then, Bush and his cronies are stripping courts of their power to be a check.
10.2.2006 7:40pm
JunkYardLawDog (mail):
Elais




JunkYardDog


You claim that the war on terror will end. How?


I've already answered that question more than once. It will end when we defeat the enemy. It will end when Congress either declares defeat or declares victory and after declaring one or the other stops funding the war effort. No person knew when we were in the 3rd year of world war II how it was going to end, who would sign what, etc etc. The questions you ask are NOT unique to the war on terror, yet people didn't run around during world war II shouting the sky is falling and the war will have no end and FDR is a mad dictator for not spelling out when and how the war will end, in advance of victory. Get real.



Both Democrats and Republicans want to defeat terrorism


No. Democrats don't want to fight any war much less the war on terror. Democrats want to bury their head in the sand and pretend their is no war, just a few isolated criminals entitled to all the due process and court action of any other citizen of the USA charged with petty robbery. You yourself argue for EXACTLY THIS. That isn't fighting the war on terror. Therefore, I find your protestations to the contrary to just be empty rhetoric.

Republicans don't want to keep the war going. That is just your own delusion. Your parties delusion. Democrats play politics and are such liars that they project these traits upon Republicans. Republicans want to WIN the war on terror. The whole country knows that Democrats don't want to win. They don't even want to fight.


Congress is free to stop funding the war, but it cannot declare the war over.


If Congress stops funding the war the war will be over. That is for sure. If the funding stops before the war is won as is yours and the democrats wish, then the stopping of funding will be an effective surrender and declaration of defeat.


It is imperative to our self-interest and self-image that America must BE a just and moral nation. The day that an pow, enemy combatant, whatever, has literally no rights at all, we as a country descend from being a proud and mighty nation. Justice for ALL.


The first imperative to our self-interest is that our nation, its economy, and it freedom and prosperity survive. That means defeating the terrorists who seek to destroy these things. If our nation and way of life doesn't survive there is no morality to be judged. One can not judge the morality of a nation that has ceased to exist. Illegal enemy combatants and prisoners of war have never before been treated by us or any other country as mere criminals with "rights" to challenge their detention in regular courts as thought there was no ongoing war. There is a good reason for this history. It is not possible to win a war if you treat it not as a war but as mere petty criminal action. Again it is the advocacy of these kinds of positions by you and the democrats that makes the overwhelming majority of people not trust the democrats to win a war and protect our country and our liberty. The democrats care more about the enemy than they do about our own soldiers and citizens. They continually reveal this thinking in their pushing of various terrorist bill of rights policies.




Says the "Dog"
10.3.2006 12:25am