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What Should Happen to Al Qaeda Cell Members Discovered in the United States?:
I've been mulling over the Fourth Circuit's decision in Al-Marri v Wright, and I have two tentative thoughts about it. First, as a matter of policy, its reasoning can lead to results that are completely bizarre. Second, those possible results help explain why I think the U.S. Supreme Court would look at the case very differently than did the Fourth Circuit.

  To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas. The cell members' plans are to detonate a "dirty bomb" in New York City, and they rent a hotel room in Jersey City, New Jersey (just across the river) to build the dirty bomb. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Arab men in the hotel staying in one room and acting very secretively.

  The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the bomb-making materials along with several photographs of Osama bin Laden and the 9/11 attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.

  The men are arrested and charged criminally. A search of the hotel room discovers all the bomb-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the streets of New York will "run red with Jewish and imperialist blood."

  But there's a major problem with the criminal case: The evidence against the cell members was obtained in violation of the Fourth Amendment. Under Stoner v. Califonia, the men have a reasonable expectation of privacy in the hotel room and the hotel clerk lacks authority to consent to a law enforcement search. As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights. The evidence -- including the videotapes in which they each celebrated the attacks and confessed to their plans -- must be suppressed.

  So what should the government do? It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians." Sure, they're Al Qaeda cell members who entered the United States to execute another 9/11, but hey, they're still civilians with Due Process rights against detention. It would be different if the men were Taliban soldiers, Al-Marri tells us; then they would be "enemy combatants." But since they're just everyday Al Qaeda cell members instead, they can't be held under that authority. Under Al-Marri, the government has to either deport the men or set them free. (There could be a possibility of detaining the men on material witness warrants, but in this hypothetical they are the only people involved in the plot.)

  From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that there are often legitimate issues of proving that alleged terrorists are really terrorists; if the President declares that the five men are Al Qaeda members who want to blow up a dirty bomb, we may want to see some proof. But in this hypothetical, there is no doubt that the men are terrorists: just watch the tapes the men made before being caught in which they boast of their attacks. Could it really be the case that the most the government can do in light of the Fourth Amendment violation is to deport the men to a foreign country? I find that possibility just bizarre.

  My reaction is part of the reason why I think the Supreme Court would have a very different take on Al-Marri than the Fourth Circuit did. Compare Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and believed to have been fighting with the Taliban; he was brought to the United States and detained there. He argued that his detention violated 18 U.S.C. 4001, which prohibits the detention of U.S. citizens "except pursuant to an Act of Congress." The Court disagreed, holding that Hamdi could be detained because the AUMF was the required Act of Congress. Hamdi then argued that his detention violated Due process; a plurality held that the detention was constitutional so long as Hamdi was given some process in the determination that he was an enemy combatant. It then remanded the case for the relevant proceedings.

  I find it pretty unlikely that a majority of the Supreme Court would say that Hamdi can be detained (if he is given the necessary hearing) but Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri have equivalent rights to have their cases heard in court via the writ of habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he was detained in the United States. But once you get past jurisdiction, isn't the case for detaining Al-Marri a lot stronger than the case for detaining Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen. Second, Al-Marri is at the core of what the AUMF was all about, while Hamdi was more at the periphery.

  For this latter point, recall what the AUMF actually says:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Isn't that pretty clearly directed at a member of an Al-Qaeda cell who entered the U.S. on September 10, 2001 to commit attacks -- much more directly than a United States citizen who was fighting against the Northern Alliance? That's part of the reason why i think the Supreme Court would look at this case differently than the Fourth Circuit; I suspect they would see a case like Al-Marri as being a core AUMF case, much more so than Hamdi. An alien Al Qaeda cell member who entered the U.S. to execute attacks is exactly the kind of person that Congress was trying stop with the AUMF; the case that he's an "enemy combatant" is stronger than the case for Hamdi. If anyone is an "enemy combatant," it's Al-Marri (assuming the allegations against him are true).

  That's why I think Al-Marri would be a repeat of Hamdi if it got to the Supreme Court. I imagine the Court holding that the AUMF is sufficient to detain non-citizen Al Qaeda members who entered the U.S. to execute attacks, and then moving on to what kind of Due Process hearing Al-Marri is entitled to receive to test whether he is in fact such a person. The Court would then remand for further proceedings based on whatever the Due Process standard turns out to be.

  Anyway, that's my initial take; obviously it's open to revision if there's something I'm missing, which is always a possibility. Finally, I should add that there is a possible way out of the Fourth Amendment holding described above: A court could hold that members of an Al Qaeda cell who enter the U.S. to commit attacks have no Fourth Amendment rights under United States v. Verdugo-Urquidez because they lack sufficient legitimate connections with the U.S. If so, then the cell members would not be able to invoke the Fourth Amendment to challenge the illegal hotel search, and the evidence could be admitted against them.

o:
I'm not a lawyer, or even on my way to becoming one, but if I recall correctly, the courts recognize that the Constitution applies to all US Persons, which includes non-citizens that are here legally.

Assuming that is true, if this guy entered under false pretenses, would that not mean he is here legally? Could the government then just prove that he is not legally here and then classify him as an enemy combatant?

Just a thought...
6.11.2007 11:48pm
Chico's Bail Bonds (mail):
I think if it really came down to (1) making a exception to the Fourth Amendment exclusionary rule, (2) denying basic due process or (3) letting a serious known terrorist free, I think making an exception the exclusionary rule would be the right choice.

I would find it hilarious (in a tragic sense) if an originalist trashed the Magna Carta/habeas corpus to save Mapp v. Ohio.
6.11.2007 11:49pm
Owen Hutchins (mail):
It seems to me that you've gone out of your way to create a scenario where they are only caught because of some intrusive and unconstitutional action, as if that would be the only way they would have been stopped.


Finally, I should add that there is a possible way out of the Fourth Amendment holding described above: A court could hold that members of an Al Qaeda cell who enter the U.S. to commit attacks have no Fourth Amendment rights under United States v. Verdugo-Urquidez because they lack sufficient legitimate connections with the U.S. If so, then the cell members would not be able to invoke the Fourth Amendment to challenge the illegal hotel search, and the evidence could be admitted against them.


And exactly where do they demonstrate that said person is in fact a member of an al Qaeda cell? Or is it just a matter of the President signs a form and they disappear forever?
6.11.2007 11:49pm
Christopher M (mail):
I don't really get Prof. Kerr's objection. What if the same scenario he outlines happened -- a bunch of guys get caught planning to commit a violent crime, but the evidence gets tossed on Fourth Amendment grounds -- but the men were U.S. citizens? The same "bizarre" result would ensue (except, even worse, presumably the government wouldn't have the option of deporting the men). So how is it any worse if the bad guys are foreigners? The obvious solution is for the government not to violate the Fourth Amendment; as far as after-the-fact options go, the government can presumably deport the men, surveil them, etc.

Alternatively, we could move to a more sensible regime in which we eliminated the exclusionary rule but imposed harsh penalties on police officers or departments who violate the Constitution, enforced by some sort of independent agency.

None of this is to quarrel with Prof. Kerr's instincts about the Supreme Court's likely take on the matter.
6.11.2007 11:50pm
Cassandrus (mail):
Doesn't this same logic apply really to any crime? Setting aside questions of magnitude, couldn't we replace the terrorists in this example with, say, a child rapist. In that case, the police wouldn't even have the opportunity to deport him. They would simply have to let a child rapist go free! Preposterous! Throw him in Gitmo! Your issue here isn't with Al-Marri, its with the fourth amendment, at least in cases where public safety is endangered.

Additionally, I think assuming the clear guilt of the suspects brackets a ridiculously salient issue. Of course if we assume guilt, the fourth amendment doesn't really stand up. No due process guarantees do--if only the guilty are prosecuted all they do is help the guilty escape their just punishment. But not everyone who is prosecuted is in fact guilty and that is why we safeguard civil liberties. To assume guilt is to dodge the meat of the issue.
6.11.2007 11:52pm
OrinKerr:
Owen Hutchins,

I believe you're missing the point. We can assume that under Hamdi, the men still get due process to determine if they are indeed members of an Al Qaeda cell. In the hypothetical, though, this is easy: the men have recorded videotapes of themselves, on their own, celebrating and describing the attacks.
6.11.2007 11:53pm
Bruce:
I agree with Christopher M. Replace the al Qaeda terrorists with a deranged serial killer. Hannibal Lecter, let's say. As a result of the Fourth Amendment violation, there's no case and Lecter must be freed. That seems no less "bizarre" than the hotel hypothetical.
6.11.2007 11:55pm
riptide:
To expand on what Christopher M said (or might have said):

What if all the people had been US citizens? Same bizzare result indeed. The solution - the FBI agent shouldn't be in that room without a warrant. Similarly, the government shouldn't have arrested Al-Marri without sufficient evidence to try him in a civil court and then deport him.
6.11.2007 11:55pm
OrinKerr:
ChristopherM,

But members of an Al Qaeda cell aren't garden variety criminals; I don't think it works to just switch the category. If you wanted to make the opposite point, you could just switch the point of comparison; you could compare the rights of an Al Qaeda cell to the rights of a traditional prisoner of war, right?
6.11.2007 11:56pm
Mark Field (mail):

It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians."


I think this is wrong. Under Al-Marri, the government can designate them as "unlawful alien enemy combatants", but it must do so. It can't just hold them indefinitely without any hearing at all.

For the rest, I don't see how your scenario differs from any other instance of the exclusionary rule except that the fact pattern is more sensational.
6.11.2007 11:57pm
jab (mail):
Dang, you can construct a hypothetical to make anything seem absurd. The police should NOT have entered that hotel room. After the hotel worker notified the police, the police should have observed the alleged criminals and collected intel until they had sufficient evidence to obtain a legitimate search warrent. Sorry, but that is "due process" in America, and I am not willing to give up Constitutional protections for expediency. Do it right the first time.
6.11.2007 11:58pm
Oren (mail):
We've heard over and over that the main goal of the GWoT is not the execution of justice but the prevention of attacks. In this scenario, the men can be fingerprinted and deported thus assuring that they will be unable to enter the country again and carry out an attack. Mission Accomplished.

Consider and even more "unjust" scenario. A sleeper cell enter the country and rents and apartment to plan a terrorist attack. A neighbor who is fluent in Arabic hears them talking about a plot, contacts the FBI who get a warrant. Upon serving the warrant, the terrorists destroy all their plans and are taken into custody. All of them refuse to make any statements.

Since the OP takes such a dim view of the 4A, am I to suppose he would throw out the 5A and 6A here and just imprison them without evidence? "Enhanced interrogation"? Deport them to Syria or Egypt and let them work 'em over?

In a country of laws, we have to live with the fact that sometime guilty people go free because there isn't enough admissible evidence to convict them beyond a reasonable doubt. That is the price we pay for some assurance against governmental excess. The founders would gladly allow that ten guilty men go free in order to prevent a single innocent from going to jail - we would do well to revive that spirit.
6.11.2007 11:59pm
Cassandrus (mail):
Furthermore, as Chico's Bail Bonds notes above, it would be relatively simply to carve out an intelligent exception to the tainted fruit jurisprudence here. After all, one of the primary justifications of tainted fruit is to deter police from engaging in illegal searches, by threatening to make those searches useless. In cases where the public safety is threatened, this deterrent evaporates because police are going to be (rightfully) more concerned with protecting the public than they are with imprisoning potential terrorists. They will conduct the illegal search regardless of whether the evidence they gather will be admissible. Excluding the evidence won't chance the behavior of the police one whit.
6.12.2007 12:00am
Mark Bahner (www):
Hi,

I look at this ruling a bit differently than you. About 180 degrees different. I look at this ruling as an indication that The Law is officially Still Breathing in the U.S.

I don't have time to address your comments/arguments in detail, but it seems to me that you go to somewhat extraordinary hypotheticals to find fault with where you think the ruling *could* lead.

In your hypothetical:

1) Why can't the police go to the room when the men are actually there?

2) Why can't the police contact the federal authorities to see whether the men have any criminal records, or to see if the federal authorities have any interest in following the men?

3) Can a FISA warrant be obtained? (My understanding is that something like 99+% of FISA warrant applications have been approved.)

Best wishes,
Mark

P.S. I notice you write, "To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas."

It's interesting that you don't use the word "alleged" in front of the "Al-Qaeda cell." It's a lot easier when one knows the answers in advance. I guess if I thought the Bush Administration was infallible, I'd be a lot more content with their legal approaches. (Or illegal, as the case may be.)

[OK Comments: Mark, your missing the fact that the government has no probable cause to get a warrant until they break and see the bomb-making material. And the men have no criminal records; they've never been to the U.S. to start collecting them. Granted, the police could go when the men are there instead; but the men could simply refuse to speak with the officer and refuse to let him in. And as I have stated repeatedly, both in the post and the comment thread, I fully recognize the question of proof; my point is precesely that this is the real question rather than whether it's possible for an Al Qaeda terrorist to be an "enemy combatant" in the first place.]
6.12.2007 12:02am
OrinKerr:
Bruce, Cassandrus,

The serial killers and child rapists are not set free, though, or at least need not be. The Supreme Court has upheld the constitutionality of involuntary civil confinement laws if someone poses a continuing dangers to others. Kansas v. Hendricks, 521 U.S. 246 (1997).
6.12.2007 12:04am
ReaderY:
1. Under U.S. v. Verdugo-Urquidez, the Fourth Amendment applies only to "the people". Indivuals who aren't members of "the people" don't enjoy its protection, although they may enjoy the protection of its 14th Amendment equivalent, which is applicable against state (but not federal) action to any person subject to the jurisdiction of a state.

2. There is a long line of cases, from Quirin to Hamdi, that a U.S. citizen who is a member of the enemy's forces is an enemy combatant subject to military law. The issue is only about the definition of membership in the enemy's forces and who decides whether it exists. I believe the 4th Circuit's definition is far narrower than the Supreme Court's and also unreasonable -- it provides a technical, legalistic definition of what it means to be part of an enemy milirary which is dependent on organizational formalities rather than a practical definition. I believe under current Supreme Court precedent, the hypothetical terrorist cell could be easily determined to be enemy combatants and treated accordingly. Under Quirin they would get a single federal judicial hearing (a habeas hearing) to determine whether they were enemy combantants -- and that is all they would get.
6.12.2007 12:05am
Cassandrus (mail):
So why not invoke that here? Seems to me a sufficient solution, and it avoids eroding current protections.
6.12.2007 12:06am
OrinKerr:
We've heard over and over that the main goal of the GWoT is not the execution of justice but the prevention of attacks. In this scenario, the men can be fingerprinted and deported thus assuring that they will be unable to enter the country again and carry out an attack. Mission Accomplished.

Oren, you have rather remarkable faith in the power of fingerprinting and the competence of the U.S. Border Patrol. What about the guy who sneaks in across the border from Mexico?
6.12.2007 12:08am
plunge (mail):
Can't we just deport them and then as soon as they touch down on foriegn soil, execute them? I mean, basically we've already asserted the right to do so: that and any other thing we want to do as long as it isn't on US soil and part of the justice system. And we've done so on several occasions. There are diplomatic consequences of course, but seriously, what's wrong with this scenario legally?
6.12.2007 12:09am
BruceM (mail) (www):
Simple solution to this. NOBODY has a reasonable expectation of privacy - ANYWHERE - when they are making, using, or preparing nuclear weapons. I'm not citing any caselaw here, because there is none, but I'm sure Scalia would agree with me.

Second, they could have gotten a warrant. In fact, you said they did. The fact that the FBI search warrant based based, in part, on unlawfully obtained information is not fatal, as I recall the caselaw holding. Second, the testimony of a housekeeping staff member at the hotel could have provided testimony of the pictures/posters on the walls, materials in the room, etc.

That being said, it's worth 100,000 dead children to preserve the Fourth Amendment and not live in a complete and total police state where all searches are per se reasonable based on fears of terrorism. In fact, it's worth more than 100,000 dead children.

[OK Comments: BruceM, I'm not sure where you are getting your interpretation of the Fourth Amendment, but it seems pretty different to me. Plus, I assume that Al Qaeda cell members post "Do Not Disturb" signs on the doors; the cleaning staff won't have entered.]
6.12.2007 12:11am
J. F. Thomas (mail):
Why do these guys have to be Al Qaeda terrorists. What if they were Christian White Supremacists from Idaho wanting to strike a blow at ZOG? Would you still find the results as bizarre?
6.12.2007 12:11am
George Weiss (mail):
oren

id like to know the following:

if hamdi denies habeus to american citizens b.c they can be combatants (as long as they get a neutral hearing)...AND
the SCOTUS eventually rules in this case that being a resident doest necessarily make you a non combatant and you can be held without habeus

than wouldnt that also mean that the COMBINATION of those two things...being a citizen and captured in the us..doesnt get you habeus either..so long as the charge is terorism and a determination is pending to se whether your an enemy combatant? do you see this as an acceptable extension?..so you see this as acceptable policy?

(these are real questions..not rhetorical)

2.
..in the situation you blog about here...
well..i assume it cant be aruged that a combination of the probably cause and exigent circumstances in the case you describe couldnt be used to justify the warrentless search (since..b.c of the decison you quote..its not a consent case)

IF not..cant people be deported if they are citizens of quarter..regardless of whether there is a good reason? cant they be deported even if there wouldnt be evidence to convict them in a court of law of a crime

and what about fisa warrents...isnt this cop an idiot for not getting a fisa warrent?
6.12.2007 12:15am
Just an Observer:
Orin: That's why I think Al-Marri would be a repeat of Hamdi if it got to the Supreme Court. I imagine the Court holding that the AUMF is sufficient to detain non-citizen Al Qaeda members who entered the U.S. to execute attacks, and then moving on to what kind of Due Process hearing Al-Marri is entitled to receive to test whether he is in fact such a person. The Court would then remand for further proceedings based on whatever the Due Process standard turns out to be.

Out of curiosity, do you think the same result would have occurred in Padilla if the court had gotten that case? If so, why do you think the administration was so eager to keep the Padilla case from being reviewed?

As an aside, I think your prognosticated scenario is close to what happened in the Al-Marri case already -- before the MCA was passed -- at least in the view of the government and district court. The court lower and a magistrate judge devised a habeas process they believed to be modeled on the Hamdi guidelines, and denied relief. This case is an appeal of that result.

Essentially, after agreeing with the majority that the MCA did not strip jurisdiction as the government claimed in its threshold argument, the Judge Hudson's Fourth Circuit dissent affirmed that result. Presumably, if the Supreme Court agreed with that argument, it could affirm it as-is, or provide additional guidance for a do-over on remand.
6.12.2007 12:15am
Mark Buehner (mail):
I'm still not sure how anyone manages to get around Quirin in this scenario, the circumstances are almost identical?

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.


As I understand it part of the trouble in Hamdan was that he was never established as an unlawful enemy combatant, and therefore ran into Geneva Convention conflicts. The scenario above makes it pretty certain that whatever court or tribunal wrestled away the jurisdiction would be certain to find the terrorists to be unlawful, and hence the Geneva argument may not come into play- and even where it might it would be in direct tension with Article II via Quirin.
6.12.2007 12:15am
Mark Bahner (www):
"The obvious solution is for the government not to violate the Fourth Amendment;..."

Exactly. That can even extend as far as getting a Constitutional Amendment to change the Fourth Amendment to address any necessary change.

The position of the Bush Administration seems to be, "The laws as written (e.g., the Constitution) don't seem to work right in this Brave New World...so let's ignore them."
6.12.2007 12:17am
Russ (mail):
BruceM, I can see your slogan now:

"America is free. After all, 100,000 dead children can't be wrong."

I am amazed that some folks who can't leap to the hypothetical here are perfectly willing to leap tp the hypothetical that the detention of a terrorist gang means that facism and martial law are right around the corner.

The constitution is not a suicide pact. Lincoln recognized this. FDR recognized this. Why can't you?
6.12.2007 12:19am
BruceM (mail) (www):
also, armed with this information, why can't the FBI follow around these guys for a few weeks (obviously stopping them if they attempt to blow a bomb) to build an independent case against them, snapping pictures, getting wiretaps, etc? That's what they are supposed to do. Hell they could probably get a quick FISA warrant with little effort. This is what FISA is there for.
6.12.2007 12:20am
DRJ (mail):
Why are the only choices to treat them as either enemy combatants or civilians? I would treat them as spies.
6.12.2007 12:21am
Dave Hardy (mail) (www):
How 'bout just shooting them all as they tried to escape? Works in Mexico.
6.12.2007 12:22am
OrinKerr:
also, armed with this information, why can't the FBI follow around these guys for a few weeks (obviously stopping them if they attempt to blow a bomb) to build an independent case against them, snapping pictures, getting wiretaps, etc? That's what they are supposed to do. Hell they could probably get a quick FISA warrant with little effort. This is what FISA is there for.

BruceM,

I don't understand your question. Is your point that the government shouldn't violate the Fourth Amendment, and therefore we shouldn't have to consider hypotheticals in which they do? It would be nice if this were the case, but I don't think we have that luxury.

Oh, and I responded to one of your comments and one of Mark Bahner's above (at the end of the comments themselves, in italics.)
6.12.2007 12:25am
BruceM (mail) (www):
Oh don't give me that idiotic constitution is not a suicide pact quote. We live in an age where we base the values of our freedoms on how many dead children per year result from the exercise of those freedoms. So let's cut to the chase and just say a right or liberty is worth X dead children per year.

Would you give up your right to drive over 5 miles per hour to save a child? 10 children? Guess what, you have. We could make the speed limit 5mph everwhere and many children per year would be saved. But we don't. We've decided that driving 55 is worth, say, 7,000 dead children per year that could be saved by driving 5mph everywhere.

The same applies to the Fourth Amendment. Get rid of the 4th Amendment and allow general warrants based on hunches and you'll save many children from criminals each year. You'll probably find 100 children in sex-caves in the basements of the homes of pedophile rapists. But it's worth the lives of those children to not live in a police state.

A suicide pact means all parties to the suicide pact die. The constitution, more specifically the Bill of Rights, does in fact mean people are going to die that, in the absence of the rights provided therein would otherwise likely not die. But the founders deemed it worth the lives of those people (today we only care about children, not people in general) to have those rights. How many dead children per year is are caused by the right to bear arms? Lots, but it's worth it. How many dead children are caused each year by the right to due process? Hundreds of thousands. It's worth it.

Whenever you exercise a right, it is done in the face of lots of dead cute precious white children with blond hair and blue eyes. So value your rights, and don't throw them away so quickly to save a child. We can make more children. Once you give away a right you don't get it back. Chilren are renewable, rights and liberties are not.
6.12.2007 12:30am
George Weiss (mail):
the problem as i see it is not a reversal here to allow foreigners to be held as combatants even if they are here in the US...

yeah..the constitution isn't a suicide pact...thats true...


the problem is that in combination with HAMDI...

in combination..this means it doesn't matter if your in the us and it doesn't matter if your a citizen...so that essentially menas..nothing matters...you got no habeus if your accused of terror.


do you know..the AP has reported that the total number of citizens held as a result of this has been...wait for it...3!...thats right..3...so what is it thats so pressing about a ruling like hamdi...that a citizen be stripped of habeus?

i can understand not letting of foreigners have it..and its also makes sense policy wise since terrorist are for the most part..not us citizens...

so i really wouldn't have a problem with a reversal here if wouldn't be applied with the dangerous (and politically unnecessary hamdi)
6.12.2007 12:30am
Mark Buehner (mail):

"The obvious solution is for the government not to violate the Fourth Amendment;..."

Exactly. That can even extend as far as getting a Constitutional Amendment to change the Fourth Amendment to address any necessary change.


But you are treating the executive branch as if its some sort of monolithic entity commanded by a single will. Thats obviously nonsense. In the scenario outlined, it was a local police that violated the 4th amendment rights. To paraphrase Scalia, are we really going to set a group of absolutely certain terrorists on a sabatage mission go free because one beat cop made a mistake? Should we return their explosives with our apologies as well?
6.12.2007 12:33am
Steve H (mail):
Orin, I'd like to see your response to the several posters who have pointed out that the same facts could apply to citizen criminals.

In fact, if you change the hypothetical to White Supremacists or other native terrorists, the options are even worse, because deportation is not available.

I say, protect the rule of law and retain the notion of limited government by ruling that the government must deport them or set them free. And then have someone kill them off the books. Everyone wins!
6.12.2007 12:34am
Erasmus (mail):
Orin, you haven't answered questions above about what if the terrorists were white Christian nationalists? What if instead of Osama on the wall, they had Timothy McVeigh? Count me among the many who doesn't understand your "bizarre" result.



What if the President decided he would just start shipping off his political enemies to gitmo and declare them enemy combatants. I find that result much more bizarre. But you seem to think that would be okay.



[OK Comments: Erasmus, as to your first paragraph, I already responded twice. As to your second comment, you're just missing the point. If you read my post, you'll notice that my view is that Al-Marri is like Hamdi: there should be a Due Process hearing as to whether in fact Al-Marri a terrorist cell member. The Fourth Circuit took a very different view: It's view is that even if Al Marri was proud and boastful of the fact that he is a terrorist, he *still* couldn't be held as an "enemy combatant" because Al Qaeda terrorists just aren't enemy combatants. Now, I realize that the "you want the president to be able to pick his political enemies and ship them off to gitmo" accusation is a fun one to make. However, it's rather bizarrely out of place here.]
6.12.2007 12:37am
J. F. Thomas (mail):
There is a long line of cases, from Quirin to Hamdi, that a U.S. citizen who is a member of the enemy's forces is an enemy combatant subject to military law.

The problem is is there is no defined enemy. Terror is a method, not a state or a force. So if you arbitrarily call someone a terrorist (is an abortion clinic bomber a "terrorist" who can be declared an enemy combatant?).

Where does it end? Who decides who is a terrorists. And Orrin's little hypo is for a dirty bomb, which will not kill many people (although it may have quite a serious economic impact).
6.12.2007 12:37am
Russ (mail):
Nice, BruceM. What you are saying is that you are willing to die, you are willing to have your family die, and you are willing for your friends to die so that potential terrorists can continue to plan attacks without interference.

I didn't see the hypothetical suggest that the police randomly burst into rooms and check under the bed for minute incriminating evidence. A person saw someone acting suspiciously, and the police found overwhelming evidence of this upon entry. I am amazed you have a problem with this. But I guess it's easy to risk "100,000 dead children" when they aren't your children. Or even you. I mean, hey - you're renewable too(just an egg and sperm). Therefore, no one should care what happens to anyone, should they?

Am I getting extreme? Yes, but so is your absurd example. By your reasoning, there are Nazi stormtroopers around every corner just itching to take away your rights on the flimsiest of excuses.
6.12.2007 12:37am
OrinKerr:
Steve H, I believe I responded to those arguments in two different comments of mine already. The first, 40 minutes ago, was here. The second, 34 minutes ago, was here.
6.12.2007 12:38am
Katherine (mail):
Oh, now this is seriously unimaginative. We could just deport them, take them off one plane onto another, render them to Egypt to be tortured for a while, fly them to Guantanamo, &hold them indefinitely without trial based on their confessions made in Egypt.

Anyway, why is a hypothetical bad policy result supposed to carry the day when an actual bad policy result often doesn't? I know for a fact that Boumedienne harmed realpeople, not just imaginary ones...

I can see the argument that, if al Marri really is a terrorist, the AUMF had nasty people like him in mind more than people like Hamdi. But there's nothing absurd or illogical about the idea that Congress did not think it was authorizing, oh, smart bombs being dropped or predator drones being launched in Dearborn to blow up the homes of Al Qaeda suspects. Nothing illogical about the courts not wanting to create an administrative detention system that allows the administration to hold people it accuses of being enemies of the United States on far less evidence than would suffice for a criminal conviction, &replacing the explicit criminal protections of the Bill of Rights with the Matthews test for the duration of a war that won't end. The CSRTs, while they haven't been subjected to review under the due process clause &I'm sure they'd fail, don't exactly make than an appealing proposition.
6.12.2007 12:42am
Erasmus (mail):
Orin, was Timothy McVeigh a "garden variety" criminal? Why is the "bizarre" result you discuss in your opening post any less bizarre if the terrorists are white surpremists? (As others have noted, it seems in more bizarre if the terrorists are home grown -- they can't be deported and they can apparently go right back to their terrorists ways.)

And if the Government can detain people if they are going to be continuing threats in a civil proceeding, why couldn't the Government do the same in your hypothetical?

[OK Comments: Erasmus, I can't tell which side you're arguing: Is your view that the government should be able to detain cell members who can't be charged criminally or that it shouldn't?

As to the Timothy McVeigh issue, clearly we are operating along a spectrum from a classic war set of facts to a classic criminal law set of facts. Different places along the spectrum fit more or less in one or the other category. It seems to me that Al Marri is close enough to the war side the spectrum (if the allegations are true) that setting him free under the criminal law model is bizarre. Timothy McVeigh seems closer to the crimial law side of the spectrum because he was not connected to any foreign group and he was a United States citizen. But as I pointed out above, merely pointing out that other places on the spectrum exist doesn't seem to prove a particular point. So you raise McVeigh. Someone on the other side raises the Nazi saboteurs in Quirin, etc. They're all just points along a spectrum; dividing lines are hard, but that doesn't mean none exist.]
6.12.2007 12:48am
Guest J:
Are you talking about a dirty bomb, or a nuclear bomb?

A dirty bomb is not likely to be much more deadly than any other kind of bomb. It creates greater levels of fear. It is not a nuclear bomb.

I can't believe I need to say this, but a nuclear bomb is not something that can easily be assembled in a hotel room.

In general, this hypothetical is a little wacky. These guys get enough radioactive material to make some kind of crazy scary bomb and we find out about it once they're in the hotel putting it together like they're assembling Ikea furniture? Who are their contacts? Where do they get the material?

I mean, if someone can arrange to pick up nuclear materials in the US without detection and can actually make a working nuclear bomb, you're talking about super-terrorists. (Consider that no terrorist, as far as we know, has as yet got hold of a loose nuke, a warhead, or sufficient radioactive material to make a bomb, and yet it has been the plot of endless movies since the early James Bond days. Presumably they have tried, and no one has done it yet.) The idea that they'd let themselves in for the risk of getting caught in a hotel in the final stages of assembling the weapon is sufficiently bizarre that it's just not a circumstance we need to worry about. It's just not going to happen. And again, who are these nuclear super-terrorists who can actually do this? It's like worrying about someone doing unlicensed brain surgery in the hotel, only a lot less likely.

If we're talking about people assembling a dirty bomb -- well, sure that's scary, but it's like assembling any other kind of bomb, and it's unlikely to do more damage or cost more lives than any other kind of bomb, so the nuclear issue is just a distraction.

I don't know about the 4th amendment issue. I think the 4th amendment is generally a good idea, and I like the sound of applying it even in these crazy cases. Perhaps it will help someone to greater clarity to understand that this hypothetical can be read two ways, one of which is basically impossible, and one of which is not nearly as scary as it sounds.
6.12.2007 12:50am
Mark Buehner (mail):
The problem is is there is no defined enemy. Terror is a method, not a state or a force. So if you arbitrarily call someone a terrorist (is an abortion clinic bomber a "terrorist" who can be declared an enemy combatant?).


That argument just ignores the giant elephant in the room- this isnt arbitrary- FORIEGN individuals come to this nation to attack targets for political objectives. That is the definition of enemy! Think about this, why would any declared enemy nation ever again send sabateurs attached to their militaries when they can simply send civilians knowing they will be treated here as common criminals. Should the nazis in Quirin been tried as such?

This delineation is maddening- taken to its (il)logical extreme, how can an individual on am actual battlefield be determined to be an enemy before you put a bullet in him (or vice versa). Does some grunt with a rifle get to arbitrarily decide who an enemy soldier is just because he happens to be a foriegner wearing an enemy uniform and pointing a weapon at him? This is ridiculous.
6.12.2007 12:56am
plunge (mail):
It is worth noting that once habeus becomes a joke, the policy can affect anyone anywhere at any time. People continue to miss that. We have a man in Gitmo right now whose "habeus" claim as stated by the government consisted entirely of the fact that he was a known associate of a man who killed himself in a suicide bombing. He was not picked up on the battlefield (our President and Vice-President, in fact, flat out lied about Gitmo being filled with enemy combatants: only a tiny minority of them were pulled off the battlefield as they claimed)

The problem was that he the man was imprisoned in 2001 and the suicide bombing took place in 2003. The court apparently accepted a habeus claim that involved time travel. But, even worse than that, it turns out that the man who was the known associate who comitted a suicide bombing turned out to be alive and well and living in Germany with his family with no known connections to any bombing in the first place.

That's the sort of kafkaesque nonsense we risk having applied to any citizen or non-citizen in the world. That's the extreme that we risk endorsing as a policy not only for our nation, but for any nation (since we claim to set the bar) acting against the citizen of any nation.

What we do to random people we purchased in Pakistan is no different than what China can do to folks vacationing in the Philipines.
6.12.2007 12:57am
abw (www):
May I humbly suggest that "citizens" do not build bombs; "combatants" do.
6.12.2007 12:58am
George Weiss (mail):
prof kerr...im not just causally commenting...im really intrested in you opiinion...

do you think that a reversal here and hamdi can or should be combined to treat all terrosit proceedings...regardless of citizenship of defendant or place of arrest...like hamdi...no marrter what...

you say that THIS case should be treated that way..and i understand that..can you give a doctrinal reason why hamdi and a resersal ehre would not be construed to essentially make all terrist cases like hamdi?
6.12.2007 12:59am
Bruce:
Orin, Hendricks limits such confinements to where "the confinement takes place pursuant to proper procedures and evidentiary standards." I suppose it's not impossible that illegally obtained evidence could satisfy such standards, but that seems unlikely to me. Hendricks concerned a statute that applied only to persons either already convicted of a violent sexual offense or who avoided such conviction due to incompetency or a finding of insanity. All of the evidence of Lecter's cannibalistic plans, let's say, is in the hotel room. So, he must go free.

In any event, forget Lecter; as others have noted, the "bizarre" result of dangerous criminals going free is a possibility in any Fourth Amendment case. If the AUMF somehow provides a way around that, that indicates an easy way to circumvent the Fourth Amendment (and the Fifth, and the Sixth): Congress could authorize the use of military force against, say, drug dealers. Would that allow the detention of Pablo Escobar (a citizen of Colombia visiting the U.S.) indefinitely, without criminal charges, counsel, or a right to a jury trial?
6.12.2007 1:01am
Mark Bahner (www):
"also, armed with this information, why can't the FBI follow around these guys for a few weeks (obviously stopping them if they attempt to blow a bomb) to build an independent case against them, snapping pictures, getting wiretaps, etc?"

Exactly. In fact, why can't the local police call the FBI who can call the INS, and have an FBI and INS agent at the door of the men's hotel room in 24 hours?

Hypothetical conversation:

FBI agent: "Hi, I'm with the FBI, and my friend here is from the INS. My friend with the INS is wonder how y'all studies are going? How 'bout that Calculus class you're attending with Professor Snodgrass...that's a bear, huh/"

(Alleged) terrorist: "No. Can't talk now. Must...ummmmm...study."

INS agent: "Well, I know some tutors, and I could have one here in an hour or two to help y'all out. We love our Qatarian friends. And we're ever so helpful to people with student visas."

(Alleged) terrorist: "No! Go away or..."

FBI agent: "You'll do what? Well, that sounds like you just threatened me. I'm afraid I'm going to have to see whether you have anything dangerous in your hotel room..."
6.12.2007 1:02am
OrinKerr:
George, Hamdi suggests that there is a sliding scale or procedural rights when the government wants to detain someone as an enemy combatant, all pursuant to the Matthews v. Eldridge balancing test. All cases wouldn't be like Hamdi because differences of citizenship, where the person was seized, etc. alter the balance.
6.12.2007 1:04am
Steve H (mail):
Prof. Kerr --

Sorry, I had read those posts, but I guess I was hoping you could come up with more than stating that al-Qaeda are not garden variety criminals. That doesn't really explain why it's "bizarre" to think that the government might have to release or deport foreign non-garden variety criminals, when it appears that the government would have to release domestic criminals of the same variety.

Besides, I would imagine that on the whole, garden variety criminals are more of a threat to the people in this country than al Qaeda is, yet I believe it is accepted that these criminals are still entitled to due process.
6.12.2007 1:04am
Dogwood (www):
Given the evidence in the hypothetical, I'm with Plunge on this one. Deport them and then have the CIA or military execute them, this is war afterall.

And yes, I know, this approach takes all of the fun out of debating the legal ramifications surrounding the 4th amendment and the GWoT.
6.12.2007 1:08am
OrinKerr:
Steve H, in the last few minutes I have responded in greater depth to your question in italics in a comment above. Here is what I wrote in response to Erasmus raising the same question:
As to the Timothy McVeigh issue, clearly we are operating along a spectrum from a classic war set of facts to a classic criminal law set of facts. Different places along the spectrum fit more or less in one or the other category. It seems to me that Al Marri is close enough to the war side the spectrum (if the allegations are true) that setting him free under the criminal law model is bizarre. Timothy McVeigh seems closer to the criminal law side of the spectrum because he was not connected to any foreign group and he was a United States citizen. But as I pointed out above, merely pointing out that other places on the spectrum exist doesn't seem to prove a particular point. So you raise McVeigh. Someone on the other side raises the Nazi saboteurs in Quirin, etc. They're all just points along a spectrum; dividing lines are hard, but that doesn't mean none exist.
Finally, I disagree strongly with your view that "garden variety criminals are more of a threat to the people in this country than al Qaeda is." We are dealing with personal procedural rights, so you need to look at the amount of danger raised by each person. Is there really an argument that a low-level drug dealer, credit card scammer, or the like is a greater threat to an American citizen than a member of an Al Qaeda cell in the United States waiting to get the signal to act?
6.12.2007 1:09am
Thomas_Holsinger:
Reducto absurdem arguments have little effectiveness in war. The distinction between foreign terrorists and domestic ones is that the former are FOREIGN - they have support from foreign groups which cannot be deterred or penetrated by domestic law enforcement.

War is not peace. Those who do not understand the difference by now never will.
6.12.2007 1:11am
Mark Bahner (www):
"That argument just ignores the giant elephant in the room- this isnt arbitrary- FORIEGN individuals come to this nation to attack targets for political objectives. That is the definition of enemy!"

No, enemies of the United States are limited to those who are serving governments with which the United States is at war. The rest are just criminals.
6.12.2007 1:13am
Justin (mail):
Orin, I tend to think of you as reasonable in lot of circumstances, but this I can't even think of as a reasonable criticism. The basic argument you are making is "constitutional due process could lead to horrendous results, theoretically, so let's completely misapply a statute in order to avoid my theoretical problem."

[OK Comments: That's incorrect, Justin, as I have explained several times already. The issue here is statutory; I'm arguing that the correct application of the Hamdi precedent is that an Al Qaeda terrorist in the United States to launch an attack is an "enemy combatant" who can be detained under the AUMF. I'm then arguing that the courts should then apply the Due Process clause, determine what rights are owed to Al Marri under Hamdi, and then give him that hearing. The key point here is that under the Fourth Circuit's approach, we never ever get to the Due Process constitutional issue; Al Marri can't be detained by the military no matter how much process he is given. My view is that we have to apply the Constitution, not that we have to ignore it.]

Or put it another way - its pretty clear that if the DTA was never amended by the MCA, that Al-Marri wins. In your hypothetical world with you hypothetical problem PLUS the fact that the MCA was never passed, are you quite alright with letting these people go? If not, then your problem isn't with the Fourth Circuit in Al-Marri, but with the constitution itself.
6.12.2007 1:13am
OrinKerr:
Oh, and I should add, in response to the Timothy McVeigh question: if the evidence against McVeigh had been obtained in violation of the Fourth Amendment, and he was unable to be charged criminally, would I have supported creative theories to detain him anyway so that he wasn't just set free? Well, it's hard to answer that in the abstract. But my instincts are that yes, I would have.
6.12.2007 1:13am
William F.:
I'm no Fourth Amendment wiz, but I'll attempt to play anyway. Why isn't this issue fairly resolved under the reasoning expressed in Illinois v. Krull:

"As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process."

480 U.S. 340, 347 (1987). See also Pa. Bd. of Prob. &Parole v. Scott, 524 U.S. 357, 363 (1998) ("[B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its 'substantial social costs.'").

When we weigh the costs of applying the exclusionary rule in the original hypothetical, we likely conclude the costs are too high. So we don't.
6.12.2007 1:14am
Mark Bahner (www):
"Reducto absurdem arguments have little effectiveness in war."

We are not at war. The United States has not been at war (per the U.S. Constitution) since WWII.
6.12.2007 1:14am
John (mail):
The key passage of the dissent seems to be its agreement with the district court:

"The standard employed by the district court to determine al-
Marri's qualifications for enemy combatant status was analogous to
that invoked by the United States Supreme Court in Ex Parte Quirin,
317 U.S. 1, 63 S. Ct. 2 (1942). In Quirin, the Court explained,
[E]ntry upon our territory in time of war by enemy
belligerents, including those acting under the direction
of the armed forces of the enemy for the purpose of
destroying property used or useful in prosecuting the
war, is a hostile and war-like act. . . .
. . . .
. . . Citizens who associate themselves with the
military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile
acts are enemy belligerents within the meaning of . . .
the law of war. . . .
Id. at 36--38. The Quirin Court further provided that "[i]t is
without significance that petitioners were not alleged to have
borne conventional weapons or that their proposed hostile acts did
not necessarily contemplate collision with the Armed Forces of the
United States." Id. at 37. "Nor are petitioners any the less
belligerents if, as they argue, they have not actually committed or
attempted to commit any act of depredation or entered the theatre
or zone of active military operations." Id. at 38. "

I must say this seems pretty persuasive. The key is whether the party has "associated" himself with the "military" arm of the foreign government, etc. I assume we can take Al Qaeda as the foreign "government" for these purposes, and therefore the question is simply whether the party associated himself with Al Qaeda for the purpose of coming here to do the requisite harm. That's a factual question that was dealt with in the district court and should conclude the issue. And, of course, this alliance with the foreign military is what distinguishes this case from all the serial killer examples and the like in the comments above.
6.12.2007 1:16am
Katherine (mail):
Now, it IS a weird result to interpret the AUMF to mean that under otherwise identical facts, the U.S. could detain al Marri if he were an accused Taliban soldier rather than an accused Al Qaeda member. I'm not sure they distinguish Padilla convincingly. But I think that's the Padilla panel's fault, not Judge Motz's.
6.12.2007 1:18am
anonVCfan:
Prof. Kerr,

Given your hypothetical and its plausibility, I agree that the Supreme Court may look at this case differently.

But is your argument that, because of this policy concern, the Court would construe the statute differently than it might otherwise?

Or is it that the 4th Circuit got the statute wrong as a matter of interpretation and that the policy implications will make the Supreme Court think this case is important enough to grant cert and correct the mistake?
6.12.2007 1:18am
plunge (mail):
If you're for ignoring the law and getting the "right result" in some cases, it really crumbles credibility when you hold out for strictly interpreting the constitution in other areas. You can always claim that your exceptions to the rules are more important, but that's a matter of opinion. I might just as well argue that protecting abortion or allowing gay marriage are extremely important, and the constitution, ya know, isn't, like, a suicide pact dude.
6.12.2007 1:18am
Thomas_Holsinger:
Mr. Bahner,

I had a client once who swore up and down that the income tax was federally unconstitutional.
6.12.2007 1:19am
Armen (mail) (www):
Is there really an argument that a low-level drug dealer, credit card scammer, or the like is a greater threat to an American citizen than a member of an Al Qaeda cell in the United States waiting to get the signal to act?

Is there really an argument that heart disease, cancer, or car accidents are a greater threat to an American citizen than a member of an Al Qaeda cell...

Am I missing something? Isn't that the point? The threat is greatly exaggerated in an effort to expand the power of the executive.
6.12.2007 1:19am
Katherine (mail):
What if the "creative" theories used to detain McVeigh would give the Executive power it has abused again and again to harm innocent people?

Your hypothetical is, I suppose, plausible, but it's not very likely, there are ways around it--detaining after deportation, believe me we could manage--and again, why do you seem so uninterested in the REAL facts about how the Bush administration seems to use powers to detain people w/o charge?
6.12.2007 1:25am
Mark Bahner (www):
Mr. Bahner,

I had a client once who swore up and down that the income tax was federally unconstitutional.

Yes, and he was wrong, and I'm right. There has been no Congressional declaration of war. Therefore, per the U.S. Constitution, we are not at war.

The Constitution isn't a complicated document.
6.12.2007 1:25am
Ahcuah (mail):
Ok, suppose instead of a dirty bomb plot it was a plot to kidnap Paris Hilton? Keep the exclusionary rule?

I'm reminded of the old joke in which the rich guy goes up to the pretty young thing and asks her if she'll go to bed with him for one million dollars. She giggles and says she would. He then asks, "Well, how about ten buck?" She slaps his face, "Just what do you think I am?"

"My dear, we've already established what you are. Now we are just negotiating price."

You're just negotiating how high of a price you'll put on your principles.
6.12.2007 1:29am
Thomas_Holsinger:
From James Taranto's Best of the Web last Wednesday:

What the Times is proposing is that all terrorists in U.S. custody be freed unless prosecutors can prove beyond a reasonable doubt that they have committed a specific crime--and in making their case, prosecutors would be bound by all the restrictions on admissibility of evidence that protect ordinary criminal defendants in the civilian courts.

What if the U.S. adopts such an approach and it turns out to be inimical to national security? What if, that is, President Clinton or President Obama or President Edwards signs the Harmon-Feinstein legislation, Guantanamo is emptied, and a few years later we see another 9/11 or worse?

Would the American people accept the idea that serial mass murder on our own soil is just the price we have to pay to preserve some abstract concept of liberty--that is, that the Constitution is a suicide pact after all? We doubt it.

It is much more likely that the political system would find it impossible to resist public demands for much harsher antiterror measures, probably involving genuine curtailments of civil liberties. There is no reason to think that liberal politicians would resist such demands. After all, Woodrow Wilson restricted free speech during World War I, and Franklin D. Roosevelt interned tens of thousands of American citizens during World War II, cheered on by then-Gov. Earl Warren of California. In both cases the Supreme Court ratified the president's excesses.

By overreacting to imagined civil liberties threats today, American liberals may be setting the stage for future overreactions in the other direction. Guantanamo helps keep America free as well as safe.

6.12.2007 1:37am
BruceM (mail) (www):
Russ: do you seriously contend that the exercise of rights and liberties do not come with costs? If you disagree with my dead children analysis, then that's what you're saying. The question is whether those rights are worth the costs. I say they are. You apparently think, or at least imply by your disagreement, that they're not. Why should we not save children by setting the speed limit at 5mph?


Orin, as long as the fruit of an unlawful search does not form the basis of a search warrant, there is no problem. If the FBI are informed about these people based on info from an unlawful search and rather than go out and arrest them based on that improperly-received information, the FBI begins their own investigation of these people, gathering their own information and ultimately probable cause over the course of a few weeks or months, it would not be a problem if they later applied for their own warrant based on the probable cause they themselves obtained. The taint does not go all the way back to the initial unlawful search. They got their own independent probable cause. For the life of me I know i've read a billion drug cases where the motion to suppress was denied on this very basis. If you want I'm sure I could hop on westlaw and find one, but I'd rather relax and watch some TV and read some blogs right now.
6.12.2007 1:38am
M. Lederman (mail):
You raise two distinct types of arguments here, Orin. I think one is much more difficult than the other.

The first argument is your hotel sleeper-cell example -- and your understandable impulse is that it would be nuts if, after the evidence is excluded, the only choices were deportation or release. For many of the same reasons your previous commenters have given, however, I don't think this hypo proves very much, other than the costs of the exclusionary rule.

The court's ruling today in al-Masri is, at bottom, driven not so much by actual legislative intent, but by a strong due process gloss -- Judge Motz assumes that to permit the military detention here would raise serious due process concerns because of Milligan, and thus she construes the AUMF not to trigger that problem. So where does that leave your hypo?

Well, to test it, let's assume the same exact hypo, except the five guys are not agents of Al Qaeda; they are, instead, "merely" Al Qaeda sympathizers -- copycats, perhaps. (Or, if you wish, make it a five-person Tim McVeigh cell in the days before the Oklahoma City bombing.) Let's also assume that they are citizens, for two reasons -- (i) it might take deportation off the table as an option; and (ii) it will eliminate any argument that the Due Process Clause doesn't apply. (If your argument is that the Due Process Clause should not apply with full force to aliens who have set up roots here on student visas, that's a distinctly different sort of argument -- but not even DOJ has argued that the DPC doesn't apply with full force to al-Marri.)

OK, there's a Fourth Amendment screw-up, as in your hypo, and the exact same cell can't be prosecuted. What do you do? If they are citizens, even deportation might not be an option. Crazy, no? But that is, basically, Milligan itself. And the holding of that case is that Milligan could not be held indefinitely in military custody -- even if Congress had authorized it (e.g., with a statute that covered Confederate accomplices such as Milligan, as well as Confederate soldiers and agents).

The simple point is that very bad people do on occasion slip through the criminal justice cracks -- and for the most part, the U.S. cannot do anything directly about it, other than watch them very closely, without violating due process. You are correct that the Court has recently carved out discrete areas of permissible preventive detention. But that doctrine surely does not apply to any and all people who are thought to present a serious risk of serious crime. Assuming you agree that detention would be unconstitutional in my hypo, why should association with Al Qaeda change the constitutional result so fundamentally?

Two other reasons why your hypo should not drive how the al-Marri case is decided: First, it's not remotely as clear as in your hypo that al-Marri was planning to commit such violent acts. The Rapp declaration stated that his computer had a bunch of info about hydrogen cyanide -- but I'm not aware of any other evidence that al-Marri presented a serious threat of using cyanide. The principal allegations against him were that he was planning substantial computer hacking. Do you think that anytime we have strong evidence that someone was planning damaging hacking, but we couldn't convict for whatever reason, that we should be able to preventively detain the person indefinitely?

Second, and most importantly (here's the theme of my blogpost again), al-Marri wasn't going free. He was about to go to trial. From all the appears, the reason he was transferred to military custody from the criminal system was that he wouldn't cooperate: The Pentagon therefore wanted to be able to engage in abusive interrogation (severe sensory deprivation; etc.) in order to squeeze information from him, and thought they could only do so if they took away al-Marri's lawyer and family, and made him think he was in a legal black hole. So change your hypo a bit -- the search is lawful, and the guys will likely be convicted; but they won't cooperate, and we want to put the screws to them. Is indefinite military detention permissible (constitutional) for that purpose?

Your second argument, as I understand it, is the Hamdi contrast. Surely, you reason, Congress would be more interested in making sure that al-Masri is detained than that Hamdi would be. After all, al-Masri is working for the really bad guys, Al Qaeda -- the ones directly responsible for 9/11 -- and he's here in the States threatening real harm against civilians, not tens of thousands of miles away in Afghanistan. If Hamdi's detention is permissible, the arugment runs, then a fortiori al-Masri's must be, too.

To me, this is a much more substantial argument. It's part of the puzzle here. But ask yourself this: Isn't the same exact distinction true as between Hamdi and Padilla? Congress would, on your view, plainly be much more concerned with detaining the latter. And yet, if the Court had reached the merits on Padilla, Breyer would have come out the other way; perhaps AMK and/or SOC, too. With Scalia, that would have been at least five and as many as seven votes for treating Padilla more favorably -- even though he's not the one who was surrendering his rifle half-way around the world, but instead the one allegedly plotting terrorist plots against civilians in the midwestern U.S.

Judge Motz makes similar distinctions here. Hers is based on association with the Taliban. Perhaps Padilla's would have been based on the fact that he was picked up here in the States. The courts are more reluctant to ok detention of Al Qaeda than of the Taliban, and of bad guys far from America than folks picked up right here in our backyard.

Why is that? Isn't it counterintuitive, especially if the question is legislative intent?

But there's a really understandable impulse behind it. Two parts to the reasoning: First, one reason we permit Hamdi to be indefinitely detained is because he can't be tried for crimes -- he didn't commit any! The theory of military detention is to be able to detain combatants until the end of hostilities even though they have done nothing but what is legal, i.e., fight against us. The trade-of for their immunity from domestic criminal culpability for their acts of killing is that they can be detained (and even shot on sight). (This doesn't explain Haupt, in Quirin. That's the hardest case to distinguish. No room or time now, though.)

Second, if military detention of U.S. citizens and residents is limited to folks detained overseas, or is limited to those fighting for a state army rather than for an incohate organization, it doesn't risk remotely the sort of authoritarian logic that Motz is so worried about. There's simply much more of a worry about massive suppression of doemstic liberties if the President can begin detaining citizens here in the U.S. who are suspected of being in cahoots with some group with which the U.S. is in conflict. Limiting the detention power to the Hamdis of the world -- to those detained on a traditional foreign battlefield and/or those associated with a state army -- is a much more discrete and cabined power. Not as much risk of fairly arbitrary dragnets here in the U.S. And much more likely to have been intended by Congress, too. Judge Motz tries to touch on some of these issues in the important note 15 of her opinion.
6.12.2007 1:44am
Daniel950:
Sorry, but that is "due process" in America, and I am not willing to give up Constitutional protections for expediency. Do it right the first time...


... or millions of people will die. Sheesh. No problem. Government only has to be 100% correct 100% of the time.

Whenever you exercise a right, it is done in the face of lots of dead cute precious white children with blond hair and blue eyes. So value your rights, and don't throw them away so quickly to save a child. We can make more children. Once you give away a right you don't get it back. Chilren are renewable, rights and liberties are not.


It is simply amazing that people here think that America will remain in the present state it currently exists in, with the same Constitution, after a nuclear attack on American soil.

I won't address the psychopathic disregard for humanity's most vulnerable, but I will clue you in on something else: If 10 million people die in a nuclear attack because the 4th Amendment got in the way, the 4th Amendment will be history. Heck, we'll be lucky if it's the only one that isn't re-written or thrown aside. I'm telling you now, that not one of you standing up for abstract rights in the face of 10 million dead will have a voice in that scenario. You will either be overrun by a mob, or shouted out by the democratic majority who is tired of their lives being sacrificed by lawyers who seem to always side with terrorists in protecting "rights."

This is why we leave fighting wars to the military, and lawyers get to do pro bono.
6.12.2007 1:45am
Mark Bahner (www):
Holy smokes! I should have been asleep an hour-and-a-half ago.

But I do have one question to those who are laboring under the misimpression that we're at war with "terrorisim", per the U.S. constitution.

When will the war end? When G.W. Bush leaves office? When Hillary leaves? When Chelsea leaves? When? What event or events would ever end that "war?"
6.12.2007 1:46am
OrinKerr:
BruceM,

You're thinking of the inevitable discovery exception, which allows the government to argue that but for the unlawful act -- that is, if the government never knew what it learned thanks to the unlawful act -- the government still would have discovered the evidence. But there's no sign of that here. Inevitable discovery requires proof that the government actually would have discovered the evidence if they hadn't violated the Fourth Amendment; your hypothetical in which they might have, who knows, isn't enough. In the hypo, the evidence is clearly fruits of the poisonous tree.
6.12.2007 1:48am
BruceM (mail) (www):
Russ, please see here" for a more thorough analysis of the measuring our rights by how many dead children result therefrom. To be fair, we have to be talking about other people's children because if we were talking about our own children then we'd forfeit all of our rights. Few people would sacrifice ONE of their children for ANY right.
6.12.2007 1:50am
Just an Observer:
FYI, the appellate briefs can be found here.
6.12.2007 1:50am
ATRGeek:
First, this is a good illustration of the fact that if bad cases make bad law, then bad hypothetical cases make even worse law. And to the extent we insist on figuring out what to do in this contrived hypothetical, I agree with those who has noted the obvious place to start is with the application of the exclusionary rule, not with the holdings in al-Marri.

But to give Orin some credit, I think there is a serious issue here, even if he raised it in an unfortunate fashion. I would agree that neither the war paradigm nor the criminal paradigm are a good fit with members of terrorist groups. And I personally think it would be fine for Congress to start developing a serious legal framework to deal with this issue, perhaps modeled on the civil commitment framework (eg, we could require both an initial judicial hearing and periodic rehearings). Indeed, one reason to do this is to shelter the conventional criminal system from the distortions that might be introduced by bad cases. And I also think it is a good check to make sure we would be just as happy with this system as applied to US citizens accused of domestic terrorists.

But we should be doing this in a way that embraces review by Article III courts, including constitutional reviw, not in a way that avoids such review. That I believe is the essence of both Milligan and al-Marri: we can tailor substantive and procedural law to the problems which face us, but as long as the courts are open, we should do that within the existing judicial structure.
6.12.2007 1:50am
OrinKerr:
Marty,

That is a thoughtful and interesteing comment; unfortunately I gotta go to bed, so I'll have to respond tomorrow.
6.12.2007 1:50am
18 USC 1030 (mail):
Well, while this is on hypotheticals, what about this one: In the first 3/4 of the last century, the Mafia was much stronger than it is today, many of those involved (both as hoods and those with great power) entered this country illegally by ship. They caused harm to our country with murder, rackets, drugs, prostitution, etc. Obviously, the Mafia did not threaten to fly planes into buildings or set of nuclear weapons, but that was more because that wouldn't make much money than mafiosi not wanting to hurt people. The Mafia was not your common criminal and they were here illegally.

Should the government have thrown all rules of law out the window in order to protect us from them? At what point must we stop using legal principals to protect the nation? And, at what point does this risk harm to our system?

And no, I am not liberal, however there comes a point where one needs to draw the line, I think this is it, but I guess I could be wrong.
6.12.2007 1:53am
Steve H (mail):
Prof. Kerr:

No, I don't believe that any single drug dealer or credit card scammer is a greater threat to the US than an al Qaeda cell. That was basically a throw-away argument (though if you add up all of the harm caused by respecting the Fourth Amendment and enforcing due process, you could probably come up with several 9-11s worth of death and destruction).

Regarding your pointing out that these cases fall along a spectrum, and that the domestic terrorist example can be countered with the Quirin example, I see where you're coming from, but I am still not persuaded. Regarding Quirin, that was a real war - nation versus nation over who would control territory, possess resources, and rule people. Al Qaeda is a conspiracy to murder. And unless they get hold of actual nukes, al Qaeda is not really much of a threat to our nation as a nation. Yes, 9-11 was horrible, but that was basically one months' worth of highway deaths.

More importantly, I think where you fall on the spectrum depends on what threat you see as more plausible. History has given us many examples of authoritarian regimes taking root because people were cowed by overhyped threats to a nation's security or stability. History has also given numerous examples of countries where the executive has the power to imprison at will, and it usually doesn't turn out well -- my father had to wait for a moonless night so he could escape across the border of one a country where such country.

History has not, however, given us many examples of civilians detonating smuggled nuclear weapons, or indeed of stateless murderers (scruffy sociopaths) who are actually able to inflict enough damage to substantively affect a country's actual daily living. So in considering situations like al-Marri, Padilla, or your hypothetical, I tend to be more cognizant of the dangers of authoritarianism than the dangers of terrorism.

I fear the next terrorist attack, but not because I think it will kill me or my kids. Rather, I fear that the reaction to such an attack will give even more impetus toward expanding the power of the government at the expense of our civil liberties. Unless al Qaeda actually gets nukes, our nation as a nation has more to fear from the reaction to terrorism than from terrorism itself.
6.12.2007 1:55am
M. Lederman (mail):
Thanks, Orin -- looking forward to it. As you can see by all my inverted letters and other typos, I'm tired, too. (This subject matter will do that to you.)
6.12.2007 1:58am
Justin (mail):
" I'm arguing that the correct application of the Hamdi precedent is that an Al Qaeda terrorist in the United States to launch an attack is an "enemy combatant" who can be detained under the AUMF."

No. If that's what you're arguing, you are wrong. You're arguing the way you hoped Hamdi would come out, not the way that Hamdi came out. That view of Hamdi got ONE vote - Justice Thomas - and that's an embarrassing vote, at that.

From Hamdi's plurality - I just don't know how many times this can be repeated, and ignored:

Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.[FN1]

Footnote 1: Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.

....

Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. . . . Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U.S. territory) cannot be detained outside the criminal process.

....

On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.



What you aren't accepting is that labeling something "terrorism" is not a magical cure for getting around the Constitution. There's a difference between being an actual enemy combatant - ie, fighting in a military capacity against the United States - and committing a crime. And Hamdi specfically makes that distinction, and you disagree with it, which is okay (sort of), but so you ignore it, which is not okay, and then you attack your commenters for pointing out what you did, and that is just rude.

You're getting irritated at people who read Hamdi and don't accept "battlefield" to mean "anywhere", who don't read "foreign" to mean "foreign or domestic," that when they say "can't be held indefinitely" don't think "sure they can" and who don't think the Hamdi plurality was joking when they stated:

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. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U.S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

So, once I again, I implore you - if you're going to argue against the Fourth Circuit's decision, we'd all appreciate a whole lot less snark and maybe some discussion about the court's decisions in Hamdi and Hamdan, the text and the legislative history of the MCA, and the ACTUAL FACTS in front of the Fourth Circuit.

[OK Comments: Justin, this is a really angry and hostile comment. The problem is that you read Hamdi one way and I read it another way. You think the Court was intentionally settling that the category was narrow; I think the Court was intentionally saying very little so it wouldn't screw anything up accidentally. Sorry if you find my reading illegitimate; it's my best sense of what the opinion means, and I guess we'll just have to disagree. I hope we can do so civilly.]
6.12.2007 2:00am
Daniel950:
I fear the next terrorist attack, but not because I think it will kill me or my kids. Rather, I fear that the reaction to such an attack will give even more impetus toward expanding the power of the government at the expense of our civil liberties.


Strange, but I actually fear that the next terrorist attack will kill me. As for what the government does afterwards? That doesn't concern me much, because I think I'll be dead. And if that future government is involved in making sure 10 million or more people don't die on Day 2 of a post-nuclear Armageddon America, then many people might consider it an improvement over the former.

"First, we kill all the lawyers." That wasn't a joke, you know.
6.12.2007 2:01am
ATRGeek:
By the way, another argument I never understand is "If a nuclear bomb goes off and kills X million people, then you civil libertarians will lose your argument anyway."

Even supposing that is true, what is that supposed to prove? That we might as well act as if we are already terrorized to the point of discarding our current Constitution in anticipation of that possibly happening?

That is giving terrorist enormous power: they don't have to even carry out their plans, because we will act as if they already succeeded.
6.12.2007 2:01am
Dave Wangen (mail):
There have been a number of people saying "what if they weren't terrorists, what if they were home-grown terrorists not Al-Qaeda, what if it was just a rapist instead of a bomb", etc.

I would point out the salient difference between an Al-Qaeda cell and (a child molester, a murderer, a fundamentalist bomber, etc). There is a _Congressional Declaration of War_ against the former. (and yes, the AUMF is a declaration of war, in fact if not in name)
6.12.2007 2:04am
ATRGeek:
The line, "The first thing we do, let's kill all the lawyers," is uttered by a criminal, "Dick the Butcher". Dick actually says it in support of Jack Cade, who is proposing to set up himself as a populist dictator.

Smart guy, that Shakespeare.

Here is the exchange:

JACK CADE.
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,-

ALL.
God save your majesty!

JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.

DICK.
The first thing we do, let's kill all the lawyers.
6.12.2007 2:11am
Steve H (mail):

Strange, but I actually fear that the next terrorist attack will kill me.


Just curious -- Why?
6.12.2007 2:11am
e:
I'm afraid I only skimmed, but has anyone changed the hypo to five official, uniformed members of the British Royal Navy who plan a similar attack kicking off the rest of the invasion? How does the respect for our rights interact and allow a proper reaction to what sounds like an international attack rather than common crime? Not that non-state actors pose any danger, but how can we provide incentive for them (or any future armed force) to obey some of the basic rules of war which attempt to protect civilians by ensuring distinction?
6.12.2007 2:13am
ATRGeek:
Dave Wangen,

Of course, the AUMF does not in fact mention sl Qaeda. It is also a bit absurd to call it a declaration of war, except perhaps to the extent it applies to nations. Here is the operative language:

"IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Can you declare war on individual people? I'd suggest that is a nonsensical idea. I'd also suggest it is equally nonsensical to declare war on an organization like al Qaeda, except in the metaphorical sense.
6.12.2007 2:17am
Andrew J. Lazarus (mail):

I assume we can take Al Qaeda as the foreign "government" for these purposes, and therefore the question is simply whether the party associated himself with Al Qaeda for the purpose of coming here to do the requisite harm. That's a factual question that was dealt with in the district court and should conclude the issue.
Except this factual question was decided entirely on the basis of the Rapp Declaration. And that isn't "evidence" as I understand the word, any more than a prosecutor's opening statement in an ordinary trial comprises "evidence". This is a very curious standard of proof, especially since there is little evidence I can imagine other than al-Marri's own unsupported word against some of the accusations. Not being a lawyer, I can't say whether it was more appropriate for al-Marri to stand mute, or to make such rebuttal as he could. I don't think one has to be a lawyer, though, to notice the marsupial aspects of the District Court proceeding.

IIRC, the Quirin defendants did not deny that they were members of the German armed forces, nor that they had entered the country by U-Boat. That would seem to distinguish their cases.
6.12.2007 2:19am
Steve H (mail):
Re Dave Wangen, the AUMF is directed only at those "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

So the AUMF may or may not apply to the 5 Qatarians in the hypothetical. Even if they are an "al Qaeda cell", does this mean that they are automatically persons who either aided the 9-11 attacks or "harbored" those who did? And if they were, it would be easy to alter the hypothetical to make the terrorists an independent group of foreign Islamist extremists.



the persons and organizations who carried out the 9-11 attacks
6.12.2007 2:20am
George Weiss (mail):
"First, we kill all the lawyers." That wasn't a joke, you know.


you sound like a terrist..i think well detain you indefinitly
6.12.2007 2:21am
Daniel950:
Even supposing that is true, what is that supposed to prove? That we might as well act as if we are already terrorized to the point of discarding our current Constitution in anticipation of that possibly happening?


It's supposed to prove that reality exists outside of the demented musings of people who argue that children are a renewable resource but that rights aren't. And also to show that the parents of those children won't take kindly to being ruled by you.

Practically, it means that I get to mock any civil libertarian who says: "Do it right the first time" or whose post basically consists of numerous paragraphs arguing why the hypothetical is not suited to their ideology because it doesn't consist of White, Christian Men.

"Has anyone considered if this hypothetical were done by Lesbian Eskimo Nazis!?!?!?!
6.12.2007 2:21am
Cassandrus (mail):
Dave Wangen

More technical points aside, the AUMF isn't particularly salient to Orin's argument, which focuses on policy consequences and thus operates independently of any declaration of war.
6.12.2007 2:21am
George Weiss (mail):
Dave Wangen

what if they were americna citizens who lived in indiana..whove never left the midwest time zone in their liove....who were also memebers of al qada by communication via internet or wire?
6.12.2007 2:24am
ATRGeek:
I think Milligan makes it pretty clear that John's extension of Quirin is not workable. In particular, you can't substitute organizations for governments and intending to do harm with joining the military arm of a government without going from the facts of Quirin to the facts of Milligan. And I think the second part is the really important one: arguably Milligan was associated not just with the Sons of Liberty but also the Confederacy, but even then he did not qualify as a member of the Confederate military despite his participation in a plot to attack US military installations.
6.12.2007 2:26am
Russell (mail):
Orin:

Like several of the earlier commenters, I think the hypothetical here proves more about the exclusionary rule than military detention --- and I say that as someone who generally supports the exclusionary rule.

As a policy matter, I think the civil commitment option might be a reasonable approach to consider --- that affiliation with a violent foreign terrorist group represents a similar threat of future dangerousness. I don't care for civil commitment in general, but it seems to me that one would do far less damage to the overall constitutional structure by following that route than by reversing Al-Marri. One reason is that civil commitment doctrine at least recognizes the premise of the Due Process Clause, and the truly exceptional nature of the idea of indefinitely confining someone in a non-criminal proceeding. By contrast, one of the reasons I'm so uncomfortable with the Government's arguments in Al-Marri (and in Padilla before that) is that the due process showing it seems willing to make is so low. (This is also, I think, true of the Government's position in the Guantanamo cases, but there the claim to Due Process protection is at least weaker.)

One final hypothetical: assume for the moment that Al-Marri had not initially been arrested on civilian charges. On the same factual and legal record, if the Executive had chosen to do so, could he have simply been shot on sight in his home in Peoria? Assuming he hadn't yet been detained, he was not yet hors de combat. If he is an enemy combatant on par with a German soldier during WWII (or, if geography matters, a Confederate soldier during the Civil War), shouldn't he likewise be a lawful target for lethal force?
6.12.2007 2:29am
Daniel950:
Just curious -- Why?


Let's see how this is supposed to go. I respond: "Because of X, Y, and Z."

Will Steve H then will respond: "Sorry, X, Y, and Z are not good enough reasons, says I, Mr. Informed Lawyer who Knows Better than You. You're a coward who can be dismissed." ?

You tell me, Steve.

It was once enough that the rational desires of civilians to be protected from harm and demanding the protection of the armed forces was enough for the government to respond. Now, we're not even permitted to rationally fear a nuclear attack, and we're expected to uphold the idea that the Constitution is, in fact, a suicide pact.
6.12.2007 2:30am
ATRGeek:
Daniel950,

I honestly could not extract a coherent thought from your post. Again, it seems to me you want to react to terrorism as terrorists want you to react without even making them carry out their attacks. Why you think that attitude gives you a right to mock those who actually want to be courageous in the face of terrorism is beyond me.
6.12.2007 2:31am
Daniel950:
I honestly could not extract a coherent thought from your post.


That's because reading comprehension isn't your friend.

Again, it seems to me you want to react to terrorism as terrorists want you to react without even making them carry out their attacks.


Making them carry out their attacks? MAKING them? You want to MAKE terrorists carry out their attacks before we can react to them? Does the idea of reasonable prevention even occur to you? That's why my "reaction" is, you #$%!. And that reasonable prevention shouldn't be hindered by the idiotic musings of demented lawyers who view children as a renewable resource. That's my "reaction." That perhaps the people who view children that way are perhaps not the best people to determine what reasonable prevention efforts are? God, you are daft.

Why you think that attitude gives you a right to mock those who actually want to be courageous in the face of terrorism is beyond me.


It won't be the first thing beyond your understanding.
6.12.2007 2:46am
LM (mail):

Under Al-Marri, the government has to either deport the men or set them free.

So, what's the problem? Deport them to Israel. Problem solved.

In fact, fly them on El Al so they can enjoy a nice Kosher meal (maybe their last) on the way over.
6.12.2007 2:50am
Cassandrus (mail):
Daniel950, not least among the numerous, ahem, infelicities in your argument is the distinct and inconvenient fact that, statistically, terrorism ranks rather low on the list of bugaboos. If you are so concerned with saving the children, I suggest you lobby for safer automobiles. Or, if national security really is your bag, focus on antiproliferation, which has been woefully neglected by this administration and well might be by the next as well. Blackbagging a few dusky fellows with names you don't like the ring of simply won't have a measurable effect on your risk of getting immolated.
6.12.2007 2:56am
BruceM (mail) (www):
Orin: No actually I'm thinking of the "independent source" doctrine, not the inevitable discovery doctrine. The FBI can initiate their own investigation of these suspects and when they acquire probable cause to make an arrest and/or get a search warrant, they can find all the stuff in the hotel room. And it will be seized legally not subject to suppression. All the FBI needs is the local police to forward the call of the suspicious hotel guest to them and begin an investigation. Or they can just initiate an investigation of these people sua sponte. No probable cause is needed to begin investigating someone.
6.12.2007 3:00am
Blar (mail) (www):
Orin, I think you're missing the force of the McVeigh-type of alternative hypothetical. You're essentially using your hotel hypothetical to make a reductio ad absurdum argument: if the exclusionary rule is enforced in cases like your hotel hypothetical (as Al-Marri suggests that it might be), we'll get the absurd result of setting these dirty bombers free. The problem with your reductio argument is that your proposed solution barely reduces the absurdity, as the McVeigh-type hypotheticals show.

In the alternative hypothetical where an independent group of US citizens (say, anti-Semitic white supremacists) are planning the exact same dirty bombing, it is about equally absurd to enforce the exclusionary rule and set them free. But your proposed solution, reversing Al-Marri and treating the terrorists in your hotel hypothetical as enemy combatants, would not apply to this alternative hypothetical (with US citizen dirty bombers). The main reason that it seems absurd to enforce the exclusionary rule in your hotel hypothetical is that these people were going to do something very very awful. Your proposed solution, though, makes use of a peripheral fact about it, that they were foreigners who identified as Al-Qaeda members, which has little to do with why the scenario was absurd. Change that peripheral fact, as the alternative hypotheticals do, and your solution flounders while the absurdity remains.

An alternative solution, which applied to anyone who was going to do something very very awful (like setting off a dirty bomb) would seem to make much better law (as long as it did not eviscerate the 4th Amendment), and it would address the factors that make the hypothetical absurd. And various commenters have suggested potential alternative solutions that seem like they could work.

Just to be clear, there are two arguments that Orin seems to be making in this post, one more of a technical legal argument based on legal facts (e.g. the text of the AUMF, the Hamdi precedent) and the other a moral or policy argument based on more abstract reasoning about what the laws ideally should be. The hotel hypothetical is the core of the latter argument, and the alternative hypothetical shows (I have argued) that it is not a very good argument. The alternative hypotheticals don't touch the technical legal argument, as far as I can tell. But they do show that Orin's hotel hypothetical is also beside the point when considering the Al-Marri ruling.
6.12.2007 3:06am
Erasmus (mail):
Blar hits it on the head. Orin, I think most people's reaction and understanding of your argument (and why it strikes many as wrong) is summed up nicely in Blar's first two paragraphs. If Blar has misunderstood what you're saying, I think clearing that up in a future posting would answer a lot of commentators questions. Hopefully you'll get a chance to read it -- it's always a shame when a really good comment comes so late.

(I do appreciate the time you've spent trying to respond to the many commentators. I'm sure even commentators who are a bit frustrated and under whelmed by the quality of your response feel the same way. ;)
6.12.2007 3:20am
George Weiss (mail):
prof kerr:

good point:

if this case were reversed then not every case would be exactly like hamdi....b/c although being in such a world...neither citizenship nor place of arrest gaurentees you a habeus refilef....the type of process you would get would still be determined by a blanceing of Mathews v. Eldridge type factors

however...its completly open eneded what that balcence would lead too

the hamdi case left him onl with the oppoprtunity to ber heard in person and to present evidence in rebuttal...

the court did adress whther he would get counsal at sucha procedding..the court oopenly said that the ocnstituion wouldnt require the inadmissablity of hearsay at such a proceeding..the court opendly said it would even be okay if the presumtion of the gov's facts guided the issue..and hamddi would be forced to say why he wasnt a combatant...instead of the gov saying why he was:


so the question really remains...if this case were reversed..and location of arrest didnt bar habeu balancs..nor did citizenship bar habeus as per hamdi...then what happens

meaning what happens when john smith..a guy whos lived in the us his entire life...and is a us citizen and is detained here in the us is charged with terrorism??

that would have been the question in padilla i guess..but the court never reached the merits....

what would the outcome of this balancing test as applied to my hypothetical john smith? should we ask that question and leave the court open to treat him no diffrently than hamdi if they like?

or should we draw the line..either citizens dont nessesarily get habeus (hamdi)..or people arested here dont get habeus (a reversal here)...not both
6.12.2007 3:53am
George Weiss (mail):
im sorry i menat the meathews court did NOT address right to counsal at such a proceeding..typo
6.12.2007 3:55am
Steve:
I really don't feel like Prof. Kerr addressed the Timothy McVeigh argument very convincingly at all. I can only echo those who point out that this post is more a complaint about the exclusionary rule than anything else.

But if we're stuck with the exclusionary rule, and our only chance of saving the Republic is to get this terror cell before a military tribunal where we apparently get to ignore all the technicalities we don't like, then I think abw at 11:58pm had the correct answer. By the time you get around to messing with bombmaking equipment in your hotel room, you've crossed the line from civilian to combatant.

If all you've done is talk about doing bad things to the USA, then we're squarely within the facts of Ex Parte Milligan, and there's no getting around that. But we can at least confine that case fairly tightly to its facts. Someone making a bomb to attack America has done far more than talk.

Oh, and the suicide pact people really need to give it a rest. EVERYTHING they don't agree with is a suicide pact. Apparently we've made a dozen or more of them since 9/11; just give it up, we're already doomed.
6.12.2007 3:56am
BruceM (mail) (www):
Steve: that's why I was saying there should be a Nuclear weapons exception to the 4th amendment, otherwise we'll end up adopting a broader exclusionary rule which will inevitably be applied to drug cases, etc. Of course, just because there may be a nuclear weapons exception does not mean we also need a drug exception (which frankly we already have).
6.12.2007 4:04am
Cassandrus (mail):
Does it even have to be an exception to the fourth amendment? Can't it just be a "grave, widespread, and immediate danger" exception to the exclusionary rule?
6.12.2007 4:07am
Cassandrus (mail):
That way, for example, the FBI doesn't get to rush in on suspicion of nuclear weapons and end up hauling them away for the eightball one of the suspects had stuffed in his sock drawer.
6.12.2007 4:11am
George Weiss (mail):
so oren's hypo has the following outs to solve the problem for the police:

1. fisa warrrent posibily
2. creation of possible exceptions to the exclusionary rule and or the 4th amendment as a whole (since we should be much more comfortable scrapping 4th amendment protections over our due process protections)
3. probable cause and exigent cirumstances could generate a reason for the warrantless search
4. the cop could simply follow the regular procedure and get a warrent before helping himself
( to be fair..oren has succesfully rejected arguments such as the gov being able to claim inevidable discovery)


furhter marty M has poiinted out his hypo shouldnt control policy for a number of reasons (see his comment) but basically its distinguishable b/c as M lederman points out...oren's hypo terrists go free..but the 4th circuit here didnt rule he should go free but rather just be charged...and that hamdi isnt nessarily an a fortiori argument for a reversal here since the gov had more intrest in getting at hamdi b/c he was in afganistan activly fighting the us.

m lederman also pointed out that the bomb makers were much more immediately involved in terror than the guy in this 4th circuit case.

none of these good arguments giving the gov room to maneuver in a situation like oren's hypo are good enough for him (so far..to be fair..he hasnt responeded to M lederman yet)


in contrast...for the protections due someone accused of terror he has simply said the Mathews scale has applied a sliding scale and that the due process for someone accused of terr should be a balancing act (one guy has pointed out that in this balance..the right to counsel rules of evidence and presumption of innocence are all up for grabs and undecided as of yet)...this no matter who the person is nor where he is arrested

thats seems to be what i see as a fair redux of oren's opinion
6.12.2007 4:32am
Kevin Murphy:
Let's take war powers out of it entirely. If a problematical search of Moussaoui's computer led to arresting some of the 9/11 hijackers and disrupting the plot, would deportation have been the only option if that evidence was excluded?
6.12.2007 4:56am
George Weiss (mail):
oh right another thing that oren never really delat with..(and has even admitted)...the deporation option appleis in his hypo
6.12.2007 4:57am
AnneJ:
Does the following properly summarize Oren's hypo:
Due to unconstitutionally acquired evidence, a number of foreigners who were preparing to detonate a dirty bomb cannot be prosecuted. It would be bizarre to set them free of evict them, so they should be detained on the basis of the unconstitutionally acquired evidence.

Apparently we are balancing constitutional rights here. It seems to me that if the evidence was acquired through for instance torture it seems equally as bizarre to use the tainted evidence as the basis for the detention of these foreigners.

If that's the case, I am wondering were Orin would draw the line. An unconstitutional search is okay, so not reading their Miranda rights would be to I assume.
6.12.2007 5:11am
Kevin Murphy:
Let's make this even simpler.

During a raid in Pakistan, a list of US sleeper agents is uncovered. Ten names and addresses are on the list. When the FBI arrests the individuals (all legally resident), six of them are found with various incriminating evidence (machine guns, C4, limpet mines, etc). No issue here, and they are all tried and convicted.

Four have utterly nothing incriminating them, other than being on the list and learning to drive trucks.

Does the USA have the authority to hold them? Does the AUMF apply? Apparently it doesn't. Can they even be deported?
6.12.2007 5:27am
MikeC&F (mail):
The problem with Orin's hypothetical: No one would ever know whether the "detained" person had such great evidence of guilt against him. Instead, the evidence regarding at least the marginal cases is kept confidential - national security, we'd be told.

Orin's hypothetical gives us a God's eye view of the evidence. But our government will not, at least in the marginal cases, even give us a bird's eye view.

Here is why I hope Orin's view doesn't become the law: I don't trust our government to detain people and to keep evidence of guilt hidden. And why should we trust the current administration? Really. How many more lies need to be exposed? How much more incompetence needs to be exposed before we begin to become skeptical of those in power?

I'm not a partisan person, by the way. I'd no sooner trust the previous administration to detain people without due process.
6.12.2007 6:10am
MikeC&F (mail):
Strange, but I actually fear that the next terrorist attack will kill me. As for what the government does afterwards? That doesn't concern me much, because I think I'll be dead.

A true patriot, I see. I imagine we'd all be speaking British English if more people had shared your attitude. Why fight and die for principles?

I actually do care what happens to this country after I die - as I am one who cares about human suffering. And I realize a totalitarian government would increase the amount of human suffering.
6.12.2007 6:14am
Mark Berman (mail) (www):
In my view, the most significant word in Prof K's initial post is "hypothetical." Hypotheticals are good for classroom discussions, superficial television shows, and scaring people, but are not often reliable guides for making good law. The notion that the only way to capture Muslim terrorists in America is by violating or watering down the Fourth Amendment is belied by the fact that every Muslim terrorist captured in America since 9/11 (and before) has been prosecuted through the same criminal justice system used effectively to prosecute other criminal activity inside the United States. The hypothetical notion that it is the Fourth Amendment exclusionary rule which is going to prevent the government from uncovering a future plot to detonate a nuclear bomb in an American city (as opposed to faulty intelligence, misallocation of law enforcement resources, failure to comprehend the significance of information, etc.) is fear mongering, at best. More evidence has been suppressed (and cases thrown out of court) on "Law &Order" than in the entire history of the American judicial system. Whether one agrees with the advisability of the exclusionary rule or not, the fact is that local, state, and federal law enforcement officers have learned to live with it, i.e., they have in fact learned to investigate cases thoroughly, obtain search warrants from magstrate judges based upon probable cause (not a difficult standard to satisfy), and otherwise function effectively within constitutional constraints.

Whether one trusts or distrusts President Bush and the manner in which he has prosecuted "The War on Terror," the powers he has asserted to himself (to the Executive Branch) -- the power to detain an individual lawfully present insde the United States based solely upon a Presidential edict and the triple hearsay declaration of a Pentagon bureaucrat -- could easily be abused by him or a future resident of the White House. Of course, while anything is possible, it is fair to say that to date no terrorist has obtained (much less detonated) a nuclear weapon anywhere in the world, whereas elected leaders routinely abuse power; such is the history of man. I do not think of myself as an alarmist, but I am alarmed that educated people can characterize as "bizarre" the possibility that government powers could be abused. Indeed, it was in response to such abuses that the Bill of Rights was amended to the Constitution in the first instance.

Finally, I should add that I am the "Mark Berman" who is identified as al-Marri's "Next Friend" in the caption of the Fourth Circuit case, and have represented him since he was a run-of-the-mill criminal defendant, charged in the Southern District of New York with credit card fraud and possessing of constitutional rights. My views are those of an advocate. As a personal aside, however, I have spent the past year "commuting" back and forth from Israel where my family has been living. Israel, of course, is a very small country that lives not only with the threat of terrorism and war on its home soil, but actual terrorism and war on its home soil almost every day. It is surrounded not by giant friends and allies like Canada and Mexico but by hostile neighbors in Lebanon, Syria, Gaza, and the West Bank. All of its borders (including those with Jordan and Egypt) are porous. Until it built a security/border wall and fences, Israel's Palestinian neighbors would successfully send their youth to blow themselves up in Tel Aviv cafes, Netanya hotels, and Jerusalem buses. Rockets launched from Gaza fall on Sderot and surrounding areas daily, almost two years after the last Israeli left. Plus, there is the growing threat of complete nuclear annihilation by Iran. All to say that Israelis have a lot to be afraid of in actuality, and not only hypothetically.

If there existed a "Terrorist Alert Level" in Israel, it would probably always be red. In America, no one would leave his house.... Yet, one does not often see or hear the sense of panic and fear mongering that has become charcteristic of American discourse regarding terrorism and its suppression (by politicians and the media, and which is implicit in the hypo which started this discussion). Israel is not a country that has a Constitution or a Bill of Rights like ours, yet, even here, fully justified fear of future terrorist attacks has not led to a police-state system inside of Israel in which people can be detained indefinitely without charge simply because the Prime Minister says so. The police are free to act aggressively to protect the population, but there is still a legal process with recourse to the courts; whether that process should be more robust or applied more even-handedly can be debated, but the point is that the decision to idefinitely detain an individual is not left to executive say-so alone, which is the authority President Bush has asserted under our Constitution.

The Fourth Circuit's decision makes a sensible distinction between alleged criminal activity inside the United States and actual wars being fought overseas. The powers afforded the Congress, the President, and the Courts (as limited by the Bill of Rights) are sufficient to allow the Nation to prevail in both battles without forfeiting the individual rights that have, for the most part, kept government in check.
6.12.2007 7:38am
TedF:
It seems to me the answer to your hypothetical is that if things are as dire as you say, Congress should suspend habeas corpus, no?
6.12.2007 7:59am
JeffB (mail):
Don't know if this is valid, but could the police use an explosive (and drug) sniffer on the doorknob or doorhandle, then call for a warrant if it came up positive?
6.12.2007 8:20am
riptide:
OrinKerr: Oh, and I should add, in response to the Timothy McVeigh question: if the evidence against McVeigh had been obtained in violation of the Fourth Amendment, and he was unable to be charged criminally, would I have supported creative theories to detain him anyway so that he wasn't just set free? Well, it's hard to answer that in the abstract. But my instincts are that yes, I would have.
Speaking as a non-lawyer, I think that this exemplifies both a) an irrational fear of terrorists and b) the problems people have with lawyers.

A) As I recall, his brother-in-law was implicated in the plot, but uncharged due to a lack of evidence. Has he done anything in the last 10+ years? No. I'm sure he's checked on time to time, and if he bought a bag of fertilizer, the police would descend on his house en masse. Or, at least, he probably thinks they might - he's on a list. So we live with the fact that some people may have "gotten away" with abetting terrorists every day.

B) Most common folk aren't fans of legal trickery - they want the guilty punished and the innocent set free. They also, however, support the bill of rights - and an officer of the court should do so as well. If the choices (as here) are "detain an alleged terrorist indefinitely with no trial" or "try a terrorist in open court where the government must present its evidence", you should always support the later option.
6.12.2007 8:21am
ATRGeek:
Mark Berman's post reminds me that the lack of courage exhibited by the likes of Daniel950 is not the necessary result of terrorism. I am confident that the vast majority of Americans are fully capable of being courageous, but to achieve that end we need leaders who will preach courage, and not fear. Unfortunately, Daniel950 and his ilk have been encouraged to be fearful for a long time now, and it shows.
6.12.2007 8:53am
Richard Aubrey (mail):
If the FBI had gotten over its Fumbling Bumbling Incompetent thing and read Moussawi's computer,nothing would have happened. It was a lame plot. Box cutters. What? Some guys not yet in the US? It would have hit the legal world and the lefties about as hard as the Ft. Dix Six have, and caused superior snickering at the racist, nativist Bush administration.
All of these plots are lame, until one works.

The material for a dirty bomb is easily come by when you recall the object is terror, not casualties. Medical waste from cancer radiation centers is treated as if it were radioactive. Many years ago, the Detroit News reported that a truck carrying the stuff had crashed, the truck, "failed to explode".
I had a chem teacher in high school who used some kind of cheap crockery for radiation demonstrations. I think it was orange. For some reason, it made the geiger counter jump more than the background radiation did. Yet millions were eating off it. The med waste referred to is less radioactive than that. But a an unlucky truck which hit something "failed to explode".
Given the mysterious quality of radiation and the interest the media have of hyping catastrophes, a couple of bushels of "radioactive" cancer medical waste could do the job.

Somebody mentioned housekeeping discovering this, but because the plotters were faithful to their "if this door is rocking, don't come knocking" sign, housekeeping couldn't go in.

What if housekeeping were an undocumented alien who, not being forced by a vile and reactionary law to learn English, remained literate only in Quechua and could be shown to not understand "do not disturb"? Is his/her accidental discovery of the plot then excluded?

And I'm only being a bit snarky in the above paragraph. I have some friends 'way up in the hospitality industry who say, with some interest on each side of the issue, that bilingual education--which is really monolingual education in a language other than English--provides them with low-skill workers who haven't a chance of working anyplace else or demanding higher wages.
6.12.2007 9:02am
PersonFromPorlock:
What's getting overlooked here is that Al-Marri's not about the defendant's rights but about the government's powers:

[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States.

Al-Qaeda members can be held as enemy military personnel but we don't want to call them that. As 'civilians' they must be criminal defendants, for lack of an alternative, and as such are entitled to full Constitutional protection. No other status for prisoners exists under the Constitution and therefore within the powers delegated to the government.

The real problem is that we want to have our cake and eat it too, treating the war on terror as a 'war' when it suits us and as a criminal enterprise when it doesn't.
6.12.2007 9:18am
Steve H (mail):
Daniel950, my question was more directed at whether there was a specific reason you believe you are likely to die in the next terrorist attack (like you live next to a particularly attractive terrorist target, or you were in the World Trade Center on 9/11, etc.).

I wasn't planning to call you a coward.
6.12.2007 9:19am
Antares79:
This is why Congress should legislate a fortified tort remedy for unlawful searches and seizures instead of a suppression remedy.
6.12.2007 9:31am
Duncan Frissell (mail):
It's misleading to claim that POW/UC imprisonment is "forever". It is only until cessation of hostilities. When I was growing up, many thought that the Cold War would last forever but it ended after about 40 years in the 1989-1992 time period. Forty years is not forever.

As soon as the Calaphists give up, we'll release all prisoners and I'm sure they will too.
6.12.2007 9:57am
raj (mail):
This post is rather silly. It presumes that al-Marri was, in fact--rather than "in allegation"--a member of an al-Qaida cell.

Mr. Kerr, when are you going to learn the difference between mere allegation by the executive and the reason for Habeas Corpus?
6.12.2007 9:57am
Duncan Frissell (mail):
Simple solution. The bad guys are 'civilians' then let 'civilians' handle enforcement.

Government has a free speech right to announce that these five guys are terrorists bound and determined to destroy the US. They can also annouce that pursuant to court orders, the terrorists will be released from custody at a date and time certain at particular GPS coordinates in the middle of a particular national forest. Problem solved.

Since civilians in defense of their homes against outside attackers are not bound by the full panoply of the Geneva Conventions, the USC, and the Constitution (many of these rules apply only to governments), we can take it from there.

The Most Dangerous Game of All.

Note, for example, that while the use of "dum-dum" ammo is prohibited to National armed forces by the Conventions (steel-jacketed only) civilians are free to use any sort of ammunition. And civilians, because they lack institutional support, are not required to accept surrenders or maintain prisoners.
6.12.2007 10:19am
Tom S (mail):
I am not a lawyer, nor do I play one on TV, but it seems to me that the chief priority here is to prevent terrorist attacks first, and attempt to bring the alleged perpetrators to justice second. In Professor Kerr's hypothetical, the discovery and disruption of the plot itself is far more significant than actually attempting to bring the suspects to trial. If, because the plotters had permanent residence status, they are subject to the 4th amendment, begin deportation proceedings and send them back to Qatar. The plot is over, this particular threat has been dealt with.

Whether or not the plotters received what we feel they may have deserved is irrelevant, and will have little--if any--effect on future threats.
6.12.2007 10:36am
Andrew J. Lazarus (mail):
I believe that the AUMF serves as a Declaration of War against the Taliban regime in Afghanistan (which we did not recognize) and against Al Qaeda to the extent that it is a surrogate government of parts of Afghanistan and Pakistan. But I don't know what it means to declare war on a non-state In World War Two, we declared war on Germany.
"Resolved, etc., That the state of war between the United States and the Government of Germany, which has thus been thrust upon the United states, is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."
We didn't declare war on the Nazi Party. So, leaving aside the evolution of the Exclusionary Rule over the last sixty years, isn't the original hypothetical the same as if some members of the Mexican Nazi Party, who had never been part of an armed force (i.e., not Quirin), were caught in a hotel room? Did FDR need Bush's right to issue lettres-cachet? I don't think so.
6.12.2007 10:50am
Justin (mail):
Orin, if my response was "angry and hostile," its because your original response was patronizing. I apologize, but I often get irritated when my arguments are summarily dismissed as "incorrect" (or previously in another thread, even though a noted law professor was completely puzzled, as "clearly wrong," without even the courtesy of addressing my arguments on their face.

I'll try and be more civil, but on the other hand, if you combine my point in the previous thread with the first one in this one, you get ----- Marty Lederman's point, which you, in contrast from summarily dismissing, called "thoughtful and interesting."
6.12.2007 11:09am
Justin (mail):
PS - I'm not saying I'm always the king of civility myself, and to the degree that causes you to be summarily dismissive of my arguments, I also apologize.
6.12.2007 11:13am
Just an Observer:
As I mentioned above, the lower courts -- a district court and a magistrate judge -- devised and applied at least the first phase of a habeas review modeled on what process they thought the Hamdi guidelines require. The process focused on a determination of whether Al-Marri is, in fact, an "enemy combatant." The result was an order dismissing his habeas petition, thus denying relief. It is that result that he is appealing in this case, which the Fourth Circuit overturned.

A description of the process can be found in the district court's order and opinion.

As you might expect, the petitioner and the government have rather different views of the adequacy of that process, which instead of a presumption of innocence allows the government a rebuttable presumption in favor of it own officers' findings expressed in multiple hearsay. The administration, and the district court, take the position that even for a citizen detained as an "enemy combatant," such process is sufficient to support detention.

The appellant and respondent briefs can be found here.
6.12.2007 11:32am
Bart (mail):
M. Lederman (mail):

Well, to test it, let's assume the same exact hypo, except the five guys are not agents of Al Qaeda; they are, instead...a five-person Tim McVeigh cell in the days before the Oklahoma City bombing.) Let's also assume that they are citizens, for two reasons -- (i) it might take deportation off the table as an option; and (ii) it will eliminate any argument that the Due Process Clause doesn't apply. (If your argument is that the Due Process Clause should not apply with full force to aliens who have set up roots here on student visas, that's a distinctly different sort of argument -- but not even DOJ has argued that the DPC doesn't apply with full force to al-Marri.)...Assuming you agree that detention would be unconstitutional in my hypo, why should association with Al Qaeda change the constitutional result so fundamentally?

This hypo makes a fundamental change in the facts which takes it out of the category of prisoners of war.

The mere change in citizenship of the actors is not dispositive. The Quirin Court held that citizenship was not the dispositive factor in determining whether a capture is properly designated as an unlawful enemy belligerent and a US citizen could be and was so designated.

Rather, what takes this hypo out of the realm of war and into the realm of criminal justice is that McVeigh was not a member of a military organization while al Marri was a member of al Qaeda, which is a non governmental military like a partisan or guerilla group.

Consequently, as a criminal defendant, McVeigh is entitled to 5th and 6th Amendment rights to a civilian criminal trial. To the contrary, al Marri appears to be an unlawful enemy belligerent as a member of al Qaeda who, under the Quirin decision, waived his 5th and 6th Amendment rights when he became an unlawful enemy belligerent.

Thus, the exclusionary rule should not apply to al Marri and the evidence gathered against him should be admissible for the purposes of his wartime detention and for trial under a military commission for war crimes.

Do you think that anytime we have strong evidence that someone was planning damaging hacking, but we couldn't convict for whatever reason, that we should be able to preventively detain the person indefinitely?

Under the Quirin decision, the answer is almost certainly yes for unlawful enemy belligerents like al Marri bent on sabotage.
6.12.2007 11:33am
Anderson (mail) (www):
Count me with the "lame, special-pleading hypo" crowd.

Either the hotel staff was able to go in the room, see the stuff, and report to the police (hence probable cause); or the plotters had forbidden even hotel staff to enter, which together with the suspicions of the clerk, would (I think) amount to probable cause, a relatively low standard.

And there's no remotely persuasive rebuttal by OK or anyone else to Christopher M's point: same hypo but they're U.S. citizens.

If Prof. Kerr has to bend this far backwards to make the 4th Circuit's ruling seem unreasonable, then I'm all the more reassured that the court got it right.
6.12.2007 11:35am
DrGrishka (mail):
As I said in a previous thread, I simply do not understand Fourth Circuit's differentiation between a Taliban soldier and an al Qaeda operative. The COurt states that Taliban was a foreign and hostile "government," while al Qaeda is merely a "group." But on what basis was that decision made?

Taliban was never internationally recognized. Neither the US, nor the UN, nor any other country save Pakistan, UAE, and Saudi Arabia recognized them as "government" of Afghanistan. At no point did the Taliban control the entire Afghan territory. Nor did Taliban confine itself strictly to Afghanistan, instead expanding into the neighboring Pakistan, specifically, NWFP. Given all of that, I simply fail to see how Taliban is a "government" rather than simply a successful gang of thugs. (True, same can be said about Bolsheviks in the initial stages, but eventually they did establish control over all of Russia, and behaved in a way governments do, including establishing international relations, holding elections (however undemocratic), etc.).

And if Taliban is not a "foreign hostile government," then I fail to see the difference between Hamdi and Padilla who entered into the service of the Taliban, and al-Marri who entered into the service of al-Qaeda. Consequently, it seems to me that the Padilla decision should have dictated the result in al-Marri.

Nor does the court's "bearing arms" distinction holds any water. The laws of war (both customary and Geneva Convention) do not limit capture and detention of only those enemy forces who actually tote Kalashnikovs. In a regular conflict, our military could detain and hold as POWs truck drivers and transport plane pilots and radio operators of the enemy, these people are members of the armed forces. They could do so even if these individuals are armed with nothing more than a toothpick. See Third Geneva Convention Art. 4. ("Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.") Nowhere does it say that these members must be "arms-carrying members." In fact Article 4 goes on to specify that civilians such as war correspondents and supply contractors are also classifiable as POWs. Thus, under the Geneva Conventions we could arrest and hold until cessation of hostilities members of the enemy's military iltellegence apparatus. And if these members were also sabouteurs, they could be tried by military commissions for violating the laws of war. See Ex Parte Quirin. If that is so, I do not understand why a member of al-Qaeda who is not actively carrying arms, but is a "member of [its] armed forces" cannot be similarly held indefinately as POW? (Whether he would be entitled to a full range of POW protections is another matter).
6.12.2007 11:38am
Steve:
As you might expect, the petitioner and the government have rather different views of the adequacy of that process, which instead of a presumption of innocence allows the government a rebuttable presumption in favor of it own officers' findings expressed in multiple hearsay. The administration, and the district court, take the position that even for a citizen detained as an "enemy combatant," such process is sufficient to support detention.

Doesn't Hamdi specifically say that it's ok to have a presumption in favor of the government?
6.12.2007 11:44am
Anderson (mail) (www):
McVeigh was not a member of a military organization while al Marri was a member of al Qaeda, which is a non governmental military like a partisan or guerilla group.

Oh, pooh. If McVeigh had been a member of the Grand White Supremacist Dragons, a paramilitary group from Idaho that had guerilla-training camps in Idaho, he would *still* not have been legally subject to indefinite military detention.

A "non-governmental military" is a bunch of civilians with guns.
6.12.2007 11:46am
justanotherguy (mail):
I think that most of these posts have missed the main point that OK is trying to make. The issue is about the ability of terrorists to effectively use those US allocated criminal rights to subvert any meaningful program to secure terrorist inside our borders. If we give terrorists captured within our borders those same rights as the bank robber, we lose the ability to catch other terrorists.

When we catch a single terrorist or a cell, there will be issues about the information used, often classified and from sources that the government does not want to disclose. Under discussion is treating the person as a US citizen and giving him the full panoply of rightsthat we give all criminal defendants. We can either use the administration method or we can use a catch and release method proposed by most liberal commenters above.

However, since our hypothetical terrorist is not a criminal defendant, he is a member of an organization at war with the US, there are grave consequences in treating him like a criminal. Giving his lawyer access to classified US files will result in their compromise and the loss of any benefits from those sources. Not to mention are the problems about those sources not meeting US civilian trial reliability standards. In other words, how we treat POWs and others in war does not meet the standards of our criminal procedures and it shouldn't. When the war is on our own shores...it still doesn't. A good example of what could happen is the Alger Hiss episode.

Alger Hiss, a well placed Soviet spy and a high ranking State Department official, gave large amounts of classified information to the Soviets. He was eventually exposed and ended up committing perjury over his activities. His "innocence" was a cause for years in liberal circles, much like the rights of the terrorists are now. However the US government had the Verona Program, a program where we decrypted and listened to the Soviet communications. We let the controversy boil for decades rather than expose the valuable intelligence program. It wasn't until the 1990s that it became expose and obvious to all but the most ideologically blind that Hiss was guilty.

Here we have more at stake. Exposing our intelligence sources and methods to keep one terrorist would result in substantially destroying the programs that led to the initial capture. That is just the way intelligence works.

This is a great dilemma. We want to give the right people those rights we have come to equate with limiting government tyranny, but those rights drastically interfere with the ability to prevent further terrorist activities in the US. The administration proposes some sort of administrative process that does not have independent court supervision to ensure that illegal enemy combatants (those in OK's hypo) are detained and questioned. It has process, but how does the administration prevent its powers from getting out of hand?

How to keep this process form getting out of hand since this is "Gestapo-like" powers to detain and make disappear to the Gitmo Gulag anyone the administration wishes?

Is preventing further 9-11s, tis time done with dirty bombs worth the risk of an abusive government? When war and peace mix on the shores, we have to break our peacetime conceptions and adapt.

Obviously this poster thinks that the 4th Circuit is out of their gourd in their recent opinion. But do we really have to wait until we peel back all the things that have kept us safe since 9-11 before and find out when we have left ourselves too open. In an era when state sponsored terrorism can quickly kill thousands and do major damage, erring on one side is better than getting the balance exactly right.
6.12.2007 11:52am
Bart (mail):
Anderson:

If McVeigh was a member of a purely American non-governmental guerilla military group, then he can most certainly be held for the duration of the conflict with that group.

If he was in uniform, openly carried arms and his group followed the laws of war, McVeigh would be entitled to POW privileges under Article 4 of the GC.

If not, McVeigh could still be held for the duration of the conflict without the privileges of a POW.
6.12.2007 11:56am
J. F. Thomas (mail):
Nor does the court's "bearing arms" distinction holds any water. The laws of war (both customary and Geneva Convention) do not limit capture and detention of only those enemy forces who actually tote Kalashnikovs.

By making up this designation of "enemy combatant" that the President has declared is outside of Geneva, he is trying to have it both ways. The point here is that people like Al Mori, Hamdan, and Padilla have been put into a status where they enjoy neither the protections of Geneva (even the lesser protections afforded spies and saboteurs) or the protections of the U.S. constitution. They are not even entitled to the "competent tribunal" contemplated by Geneva to determine their status. Instead, based entirely on the apparently unchecked determination of the president, a person can be declared an "illegal enemy combatant" and held indefinitely without any rights at all.

No one who has found this decision so appalling has yet offered an explanation as to how and by whom this power could be checked. All Orin says is we are operating along a spectrum and Timothy McVeigh falls on the crime end of the spectrum. What if the president said he had evidence a McVeigh-like cell was funded by Al Qaeda (of course he wouldn't have to produce a shred of evidence to prove it, his word would be good enough)? Does our new McVeigh suddenly become a enemy combatant because of this "evidence".
6.12.2007 12:00pm
J. F. Thomas (mail):
If he was in uniform, openly carried arms and his group followed the laws of war, McVeigh would be entitled to POW privileges under Article 4 of the GC.

No he wouldn't. What state or recognized faction in a civil war would he be fighting for?
6.12.2007 12:09pm
DrGrishka (mail):
J.F.

Whether or not you agree with the Padilla and Hamdi decisions, you have to recognize that they are binding on this panel. That being so, I am of the opinion (for reasons stated) that the distinctions made by the majority to sidestep those two decisions are unconvincing.

As to McVeigh. There is a distinction between domestic fringe groups and international terror network. I think it is beyond doubt that if US were at war with whatever militia McVeigh belonged to (as in e.g., Civil War) he could indeed be held indefinately (though probably not tried by the military. See Ex Parte Milligan).
6.12.2007 12:10pm
Just an Observer:
Steve: Doesn't Hamdi specifically say that it's ok to have a presumption in favor of the government?

The way I read it, basically, yes.

That is why the Hamdi court was careful to narrow its AUMF analysis to the specific situation on the Afghan battlefield that it dealt with in that case.

And that is why applying the Hamdi process to different sets of facts in a domestic context is so troubling if all it takes to trigger the detention is the government's unlilateral assertion that someone legally in this country -- citizen or not -- is an "enemy combatant."
6.12.2007 12:12pm
nunzio:
Deport them and kill them overseas. Problem solved.
6.12.2007 12:48pm
Anderson (mail) (www):
Deport them and kill them overseas. Problem solved.

Stalin couldn't have said it better himself.
6.12.2007 12:53pm
nunzio:
Stalin's dead.
6.12.2007 12:59pm
J. F. Thomas (mail):
I think it is beyond doubt that if US were at war with whatever militia McVeigh belonged to (as in e.g., Civil War) he could indeed be held indefinately (though probably not tried by the military. See Ex Parte Milligan).

The problem is you can't say we are at war with "Al Qaeda". Al Qaeda isn't organized well enough for the phrase "we are at war with them" to have any real meaning (even if we are willing to distort the use of the word 'war' well beyond its ordinary meaning). It might make sense to say we are at war with the Mafia because at least Mafia members can be positively identified. Al Qaeda is now nothing but a loose confederation of terrorists that subscribe to a vaguely Wahabiist ideology.
6.12.2007 1:05pm
Justin (mail):
"Stalin's dead"

And as such, we have absolutely nothing to learn from his example. Yay!
6.12.2007 1:05pm
DrGrishka (mail):
J.F.

The problem is you can't say we are at war with "Al Qaeda".

That is wholly irrelevant for a judicial decision for 2 reasons. One, as outlined above, I have yet to hear a difference between al Qaeda and Taliban. Two, who we are at war" with is a purely political decision that cannot be second guessed by a court. See also Barbary Pirates.
6.12.2007 1:07pm
Bart (mail):
J. F. Thomas (mail):


The problem is you can't say we are at war with "Al Qaeda". Al Qaeda isn't organized well enough for the phrase "we are at war with them" to have any real meaning (even if we are willing to distort the use of the word 'war' well beyond its ordinary meaning).

You might want to tell that to the US and Iraqi soldiers in Iraq who have been fighting a very organized al Qaeda in Iraq for years now as well as to the thousands of Iraqi citizens whom al Qaeda has murdered over that period of time.
6.12.2007 1:11pm
DCL (mail):
Change your scenario -- make everything the same but instead of finding bomb equipment in the hotel room they find cocaine. Exclusionary rule applies, no? So what is the difference? Is it their foreign origin? That doesn't seem correct. The magnitude of the alleged crime? That seems a slippery slope to me.
6.12.2007 1:15pm
Anderson (mail) (www):
Btw, if you change Nunzio's recommendation to "Deport them and torture them overseas," you have a genuine U.S. policy, extraordinary rendition. Give him points for being in touch with how our leaders think.
6.12.2007 1:18pm
J. F. Thomas (mail):
You might want to tell that to the US and Iraqi soldiers in Iraq who have been fighting a very organized al Qaeda in Iraq

I am of course not claiming that groups called Al Qaeda do not exist or are committing acts of terror. What I am saying is that Al Qaeda groups are not controlled by a central authority. We can kill all the "number 3" guys in Al Qaeda we want (apparently the most dangerous job in Al Qaeda), capture or kill 75% of their leadership (somewhere between 20 and 200 people, although how we know we have eliminated 75% of a number between 20 and 200 is beyond me) and even OBL, and the impact on Al Qaeda in Iraq will be minimal. It is almost completely independent of the organization in Pakistan and Afghanistan. In fact "Al Qaeda in Iraq" is actually a bunch of organizations, some of which have actually have nothing to do with OBL's organization.
6.12.2007 1:19pm
Anderson (mail) (www):
The magnitude of the alleged crime? That seems a slippery slope to me.

Where's Eugene Volokh when you need him?

Really, though, that seems to be Prof. Kerr's theory: that al-Qaeda is Different and thus changes the rules. That's been the Addington-Yoo theory from 9/12 on. One would think that would be a sufficient caution.
6.12.2007 1:22pm
J. F. Thomas (mail):
Two, who we are at war" with is a purely political decision that cannot be second guessed by a court.

So, Orin's argument about McVeigh is not necessarily correct. You are saying the president can say we are "war" with the KKK, the EDL, the NRA, the Boy Scouts or the Democratic Party and detain any members of those organizations as illegal enemy combatants?
6.12.2007 1:23pm
whit:
"Change your scenario -- make everything the same but instead of finding bomb equipment in the hotel room they find cocaine. Exclusionary rule applies, no? So what is the difference? "

the difference is that cocaine is not an act of war thing. it's a criminal enterprise thing (spare me "war on drugs" analogies please.

this is a WAR thing. it's not a crime thing.

and it's asymetric warfare. so, yes - al qaeda etc. ARE different from centralized govt.'s like the nazis, etc. so what?
6.12.2007 1:32pm
ATRGeek:
A couple random thoughts:

First, it is axiomatic that with intelligence, there is necessarily a tradeoff between keeping your sources and methods secret and actually using the intelligence that you gather. So, for example, if you use intelligence from a well-placed spy to guide your troop movements, eventually your troop movements may tip off your enemy about the existence and even identity of your spy. In such a case, you may actually let some of your troops do things you know are not optimal (meaning more of them than necessary will die) in order to protect your source for the sake of his or her long-term value.

So, the tradeoff presented by wanting to prosecute people your intelligence has revealed deserve prosecution, but being afraid that in so doing you will be forced to reveal too much about your sources and methods, is nothing new. But that does not mean we should eliminate the requirement to present your evidence of guilt and to have it tested in an adversarial proceeding, because those are fundamentally important requirements as well. In other words, if you think protecting your secrets is more important than prosecuting this person in a lawful manner, then that is a choice you may have to make, and that may mean letting them escape prosecution. But that isn't an excuse to dismantle our fundamental legal structures just so you do not have to make such choices.

A second random thought: I agree that Milligan allows for the possibility of detaining enemy civilians in military custody during the conduct of hostilities, as in fact do our international treaties, although I think Milligan and our treaties imply that in such cases they would have to be treated as POWs/lawful combatants. In other words, if you wanted to accuse them of violating the laws of war (as in fact Milligan was) and then treat them as unlawful combatants, you would have to transfer them to the civilian courts for trial.

Nonetheless, that sort of POW paradigm also does not really fit these situations. Indeed, the most obvious observation is that it is possible to identify the end of hostilities when you are talking about something like the Civil War. Our "war on terror" is really just a metaphor, however, and it is nearly impossible to define the conditions under which we would know such a "war" has ended. Even the end of the "Cold War", while not a war like the Civil War, could be identified by the collapse of the Soviet Union. Imagine, though, that we had called it a "war on Communism"--when would that end? Has it ended yet?

That is why I think a "civil commitment" model may be most appropriate, and again it would be crucial to have not just initial judicial proceedings, but also periodic rehearings in which the government would again have to show (probably with at least "clear and convincing" evidence) that the detainee was likely to immediately return to participating in active hostilities against the United States. Presumably, with time this would be a harder and harder burden to meet (eg, as the detainee's former associates were also captured or killed).

As this suggestion indicates, it should not be enough that the detainee bears the United States ill will: the evidence should have to show that the detainee has the present intention and means to engage in hostile (meaning unlawful and violent) acts against the United States. And, of course, the desire to interrogate the detainee should not be grounds for a long-term detention.

Again, all this would be designed to allow the United States to detain enemy civilians for the purpose of preventing them from engaging in active hostilities, subject to appropriate burdens of proof. But it would allow for nothing more (not coercive interrogation or criminal punishment or so on), and it would be designed not to degenerate into indefinite detention.
6.12.2007 1:39pm
Anderson (mail) (www):
I wonder if there's any caselaw on pirates' accomplices within the U.S. -- the piracy/terrorism analogy has been made often, for various purposes. At least there's *some* law on how to deal with piracy charges.

If al-Marri had been in Miami, aiding and abetting pirates somehow, would that allow military detention, etc.? If not, then why should terrorism be any different?
6.12.2007 1:45pm
DrGrishka (mail):
J.F.

Not just the President. But the President together with Congress. See AUMF. Second, your hypothetical a) does not seem to accept a number of court decisions that explicitly state that "state of war" is a politica question and b) otherwise absurd. If we ever get to a point where the President declares that the US is at war with the Democratic Party and starts arresting Democrats, appeals to the Constitution would be in vain. By that point, our country as we know it would simply cease to exist and the Constitution wouldn't be worth the paper it is written on.

You however still fail (as has the 4th Circuit) to logically differentiate between al Qaeda and the Taliban or the Barbary Pirates.
6.12.2007 1:52pm
David Drake:
Orin--

I read the case, and I concur with you. The result is bizarre. But the whole U.S. jurisprudence re Al Qaida and the Taliban is bizarre.
6.12.2007 1:57pm
Bart (mail):
J. F. Thomas (mail):

Bart: You might want to tell that to the US and Iraqi soldiers in Iraq who have been fighting a very organized al Qaeda in Iraq

I am of course not claiming that groups called Al Qaeda do not exist or are committing acts of terror. What I am saying is that Al Qaeda groups are not controlled by a central authority.


It is irrelevant whether al Qaeda is one operational group or several so long as there is a group. During the Indian Wars of the 19th Century, the US fought several dozen different tribes. Occasionally, the tribes would unite for short periods as they did at Little Big Horn. However, despite the Indians lack of central authority, no one claimed that the United States was not at war with the Indian tribes or that captured tribal combatants were civilians entitled to criminal due process.
6.12.2007 1:59pm
Derek:
The primary problem with Mr. Kerr's post is that it ignores the fact that "Al Qaeda" is not a single entity. The ENTIRE purpose of the enemy combatant doctrine is to provide a legal framework for handling POWs. Mr. Kerr apparently does not understand that there is no such thing as a monolithic "Al Qaeda" as presented by the government and Fox News.

The so-called "Due Process hearing" that Mr. Kerr hopes for instead *effectively* becomes a criminal trial that is decided by a judge and not a jury. As soon as a person is ruled to be a combatant, they are for all effective purposes, "guilty" of "terrorism" and can be imprisoned forever.

That is not a system that is going to work under our system of law -- unless at the very least, we want to do away with a jury based system.
6.12.2007 2:03pm
ATRGeek:
A couple more thoughts:

I believe pirates proper were triable in the courts of the Lord High Admiral in Britain, which implies a sort of military jurisdiction. I am not sure of their land-based accomplices, however--that is an interesting question.

As for distinguishing al Qaeda and the Taliban or Barbary Pirates:

First, for the purposes of US caselaw we also have to factor in the group sometimes known as the Sons of Liberty (the insurrectionist group to which Milligan belonged). Again, I don't think Milligan shows that the civilian members of such groups cannot be detained, but they apparently cannot be treated as unlawful enemy uncombatants either.

Second, I actually don't think the group's status really matters: it is more a matter of determining who counts as a combatant or merely a enemy civilian, and Milligan shows that the second category is nontrivial (and includes people, like Milligan, who were actually plotting to attack US military installations during a time of war).

Third, to distinguish al Qaeda you would first have to be able to define al Qaeda, and al Qaeda per se is basically just a popular brand name at this point.

Finally, it should be noted that whether officially recognized or not, both the Taliban and the Barbary "pirates" were the de facto sovereign authorities in certain territories.
6.12.2007 2:04pm
Colin (mail):
I had a chem teacher in high school who used some kind of cheap crockery for radiation demonstrations. I think it was orange. For some reason, it made the geiger counter jump more than the background radiation did. Yet millions were eating off it.

This is off-topic, but that pottery set off the geiger counter because of the uranium used in the glaze. Those pieces are typically red, although I've heard of yellow uranium glazes, too. They're supposedly perfectly safe up on the shelf, but it's not a great idea to eat off of it--uranium is poisonous, and acidic foods can leach it from the glaze over time. I don't know of anyone who's tested that theory, though.
6.12.2007 2:08pm
Derek:
Under the framework suggested by Mr. Kerr, being a "terrorist" becomes a "status crime" just as being a "juvenile runway" is a status crime in some states.

Do we really want to use this legal framework? I think it erodes our basic freedoms.

I would like to point another thing out from a non-legal perspective.

Israel, a country of about 7 million people, survived HUNDREDS of major terrorist attacks for years.

I feel that people who worry about terrorism against the United States are ultimately cowards -- not saying that Mr. Kerr is a coward, just that the threat has been overestimated by the media, govt, etc.
6.12.2007 2:08pm
Observer (mail):
Prof. Kerr,

First, thanks for the excellent and thoughtful post. Your analysis in terms of a continuum seems right on to me.

Second, having read most of the above comments it seems to me that the divide is between people who think the US is at war and those who do not. If you think that AQ is just another criminal gang, like the mafia, then the application of extraordinary wartime measures makes no sense. If you think that we're in a war with global jihadists, you come to another conclusion.

I think this explains the talking-past-each-other comments here.

Last, I think the level of civility and focus on reasoned argument in the comments above (as opposed to ad hominem attacks) is extraordinary for the internet.
6.12.2007 2:13pm
Derek:

It is irrelevant whether al Qaeda is one operational group or several so long as there is a group. During the Indian Wars of the 19th Century, the US fought several dozen different tribes. Occasionally, the tribes would unite for short periods as they did at Little Big Horn. However, despite the Indians lack of central authority, no one claimed that the United States was not at war with the Indian tribes or that captured tribal combatants were civilians entitled to criminal due process.


First of all, what America did the Indians is one of the saddest chapters of our history.

Second, a person was rather easily verifiably an Indian and a battlefield combatant in such situations.

It is much harder to say who is a terrorist, and who is merely a person who appreciates pictures of OBL. That's why we have *trials*
6.12.2007 2:14pm
ATRGeek:
Bart,

I find it interesting that you bring up Native Americans. It is true that on several occasions, European settlers and later people of the United States failed to make distinctions between the Native American peoples who were at war and those who were not (see, for example, the Sand Creek Massacre). I'm not sure why the failure to make such distinctions is something we would want to repeat.
6.12.2007 2:15pm
DrGrishka (mail):
ATR,

But the question before the court did not concern trying Mr. al-Marri. The question was about lawfulness of the detention. And it seems to me that Milligan did not prohibit that.
6.12.2007 2:19pm
r78:
Suppose a hotel clerk believes that a group of 5 men sharing a hotel room are acting "secretive." He calls cops and they look in room and discover walls covered with kiddie porn and notice 4 young children bound and gagged on the floor.

Yes, that would probably be an illegal search and, yes, they would probably go free. That is the way the system is supposed to work. Why is this such a surprise? You seem to be arguing for a "Yes, but they turned out to be really bad people" exception to the 4th Amendment.

How about a hypo of what would result if the above were not the law: A hotel clerk thinks a man and a woman were acting very secretive as they entered and left the hotel so he called the police. The office stops by and opens the door with the hotel's key. He sees a man and a woman having sex on the bed. Okay, no big deal - just checking in. Isn't that what would result if a call from a suspicious hotel manager was all that was necessary to allow police to enter a hotel room? After all, if any evidence you find from such a search could be admitted, what would a cop care if he intruded on someone's privacy.
Is that the world you want to live in?
6.12.2007 2:40pm
ATRGeek:
DrGrishka,

I agree that Milligan does not necessarily prohibit detention of enemy civilians. I also do not think the Fourth Circuit's decision actually prohibits that. What the Fourth Circuit prohibited is the President declaring that people like al-Marri are "enemy combatants" and then ordering the military to hold them "indefinitely". Indeed, the court repeats variations on this formulation many times (that it is unlawful for the President to classify a civilian as an enemy combatant and then order the military to seize and hold them indefinitely).

So, I think that leaves room for something like the alternative I suggested: a variation on the civil commitment scheme. Again, it would be crucial that this scheme generally comply with due process, and it could also not be "indefinite" (hence the periodic review process I suggested). Also, the Fourth Circuit would apparently require Congress to do this. But insofar as the Fourth Circuit seemed more or less fine with the detention provisions in the USA-PATRIOT Act, I don't think the Fourth Circuit's decision implies that the existing statutory detention scheme could not be modified (again, subject to the requirements of due process).
6.12.2007 2:45pm
Richard Aubrey (mail):
Colin.
Yes, the instructor mentioned the glaze. My point was that something which was safe enough to eat off is actually livelier than radioactive medical waste which is entirely capable of sparking terror if used in a dirty bomb, considering the state of the public's knowledge of radiation and the media's fascination with it and catastrophe.
I recall the Three Mile Island hearings. One of the testifiers said that in the area where the TMI plume landed, there would, under ordinary circumstances, have been 40,000 deaths in the next X number of years. The radiation from TMI would raise that by a 50% likelihood of one additional death.
Yet we had, in one case, a Catholic clergy person whose fifteen minutes had not then been supplied him giving conditional absolution to his flock.
The idea that the hypo is too wild is not valid, is my basic point.
6.12.2007 2:57pm
Kelvin McCabe:
Just wanted to leave a shout-out for the lawyer above who represents the alleged al-queada client referenced in these hypotheticals. Keep up the fight! From all appearances, your client was nowhere near as dangerous the hypothetical proposed by Prof. Kerr posits. Regardless, the indefinite detention of any person with recognized const.rights based on untestable uncorroborated triple hearsay (possibly in future cases extracted overseas from someone under duress/coercion/torture)is simply unacceptable.

If the Sup Ct grants cert and you lose, it will be a beacon to all the world that America has officially lost the war on terror because we have officially given up on core principles that once defined America. Dont let that happen! As you note, Isreal, which suffers from the terrorist threat/violence on a scale exponential to our own, has found a way to try, convict and apparantly imprison these people while still providing access to courts. There is no reason on earth why we cant do the same here.
6.12.2007 2:59pm
srg:
Kelvin McCabe:

Israel has not yet faced a credible nuclear threat from terrorists, nor have we. If and when that happens, the rules of the game will surely change.
6.12.2007 3:10pm
Derek:
Srg -- if and when, if and when -- then we can talk. Also, a nuclear weapon is pretty hard to build with out state complicity or assistance. In such a case, talk of enemy combatants starts to make more sense again.
6.12.2007 3:15pm
srg:
Derek:

"If and when" was the whole premise of Orin Kerr's original post -- if and when the terrorists have a dirty bomb, that is.
6.12.2007 3:22pm
Thomas_Holsinger:
ATRGeek,

Detention and interrogation are different issues. But it is nice to see you recognizing the necessity of detention, i.e., you admit that the current Al-Marri decision should not stand.

Again, all this would be designed to allow the United States to detain enemy civilians for the purpose of preventing them from engaging in active hostilities, subject to appropriate burdens of proof. But it would allow for nothing more (not coercive interrogation or criminal punishment or so on), and it would be designed not to degenerate into indefinite detention.

As for indefinite detention, please tell the enemy to be sure to stop attacking us by a date certain. In fact, please go and personally tell them that. I'm sure they'll give your opinion the consideration it deserves.
6.12.2007 3:34pm
Bryan C (mail):
I'm not sure why the failure to make such distinctions is something we would want to repeat.

Obviously we don't want to repeat that. Which is why the current rules of war (such as they are) heavily penalize combatants who deliberately obscure or hide their enemy status. The American Indians didn't (necessarily) do that on purpose, but terrorist organizations most definitely do.

As for the hypothetical, I happen to agree with the President and Congress that we're at war with this particular terrorist organization, so I'd say it's a military matter and not a criminal investigation. If that same police officer had stumbled on an underground faction of Bundists plotting to bomb New York then they would surely have been arrested and imprisoned. Were there wrongs and abuses? Sure. Will there be similar problems today? Yes. That's one reason why wars are bad.
6.12.2007 3:35pm
David Drake:
I second Observer's comments, particularly the "war" v "crime" divide.

My view is that, regardless of whether or not the U.S. is at war with Al Qaida (and I think it is), Al Qaida is certainly at war with us.
6.12.2007 3:35pm
srg:
Orin,

We are all still waiting eagerly for your reply to Marty Lederman.
6.12.2007 3:40pm
Anderson (mail) (www):
You seem to be arguing for a "Yes, but they turned out to be really bad people" exception to the 4th Amendment.

Suppose they were members of an international child porn ring that had declared war on America and had decided that subverting our sexual morals was the surest path to victory?
6.12.2007 3:44pm
Thomas_Holsinger:
Point of information:

So-called "dirty bombs" are pretty much a myth. They are far more psychological devices of the "EEEK - A NUKE!" variety than physically or economically dangerous ones.

We would be fortunate if terrorists plot to use "dirty bombs" on us rather than something dangerous like chemical explosives.

Unless the a "dirty bomb's" detonation involves a nuclear chain reaction with lots of neutrons irradiating fissionables, i.e., at least a nuclear "fizzle" if not a true nuclear weapon, it would be no more dangerous than a conventional explosive of similar yield with some toxic material like cadmium wrapped around it.
6.12.2007 3:48pm
David M. Nieporent (www):
Mark Bahner:
Yes, and he was wrong, and I'm right. There has been no Congressional declaration of war. Therefore, per the U.S. Constitution, we are not at war.

The Constitution isn't a complicated document.
True. Which is why you shouldn't be misinterpreting it.

First, whether we are "at war" is a factual question, not a legal question. Congress declaring war is not what defines whether we are "at war." We were at war with Japan from the moment Pearl Harbor was bombed, before FDR mentioned infamy to anybody.

Second, there certainly has been a Congressional declaration of war. Search through that noncomplicated Constitution of yours -- you won't find any magic words that Congress needs to say to declare war.
6.12.2007 3:48pm
SDProsecutor:
And so, from Mark Berman's post, we are able to distill the essence of disagreement:

The Fourth Circuit's decision makes a sensible distinction between alleged criminal activity inside the United States and actual wars being fought overseas.

Those that support the Al-Marri panel opinion, and would distinguish Hamdi, believe that this war is being fought overseas.

While it is staggering to me that there are still those who believe that this war is not also being fought on the homefront, or believe that we can fight the "close fight" with rules of criminal procedure, many of the posters here have firmly convinced me that these people exist.
6.12.2007 3:52pm
OrinKerr:
<i>Orin,

We are all still waiting eagerly for your reply to Marty Lederman.
</i>
Thanks, SRG. I am working on it; I was in a meeting all morning and just came back from lunch, and right now I have to finish some follow-up questions to my recent Senate testimony that is due tomorrow. But I'm working on it, too.
6.12.2007 4:14pm
ATRGeek:
Holsinger,

As I already explained, I don't believe that the al-Marri decision actually prohibits detention. It just prohibits the indefinite detention of civilians as combatants.

On the subject of indefinite detention, you write: "As for indefinite detention, please tell the enemy to be sure to stop attacking us by a date certain."

Inadvertently, you are making my point for me. Even if I wanted to negotiate an end to the "war on terror", I could not identify an enemy to negotiate with, meaning some person or authority capable of declaring an end to the efforts of terrorists. That is precisely the problem: the rules regarding the detention of enemy combatants assume a war with a definable end, at which point the detainees will be released (unless convicted of crimes in the meantime). But neither you nor I can define what an end to the "war on terror" would look like. Indeed, as you implicitly point out, there is no one on the other side capable of surrendering and ending this "war".

That is why I believe we need a new approach. Rather than waiting for an end to the "war on terror", a condition we cannot even define, the detainment of a given individual should be based on the facts and circumstances related to that individual, as proved by at least clear and convincing evidence in an adversarial process, and periodically reviewed. because as you inadvertently point out, waiting instead for some global cessation of hostilities is absurd.
6.12.2007 4:14pm
OrinKerr:
Orin,We are all still waiting eagerly for your reply to Marty Lederman.


Thanks, SRG. I am working on it; I was in a meeting all morning and just came back from lunch, and right now I have to finish some follow-up questions to my recent Senate testimony that is due tomorrow. But I'm working on it, too.
6.12.2007 4:14pm
JustinR (mail):
As far as the hypo goes, maybe that cop should have gotten a warrant...
6.12.2007 4:19pm
Anderson (mail) (www):
They are far more psychological devices of the "EEEK - A NUKE!" variety than physically or economically dangerous ones.

This is what I hear, too, but there is a reason they're called "terrorists." The disruption by such a bomb, particularly in lower Manhattan, say, would be quite an accomplishment for al-Qaeda.
6.12.2007 4:21pm
Tillman Fan (mail):
What if everything about the hypothetical is the same, except instead of planning to detonate a dirty bomb they just intended to kidnap or kill one guy (perhaps a local rabbi)? Would the application of the exclusionary rule remain so "bizarre" as to look for ways to avoid it?
6.12.2007 4:31pm
Richard Aubrey (mail):
Back in the day, the U.S. Army had a short-lived weapons system called the Davy Crockett. It was a nuclear artillery system. Problem was that its range, being partly recoiless rifle, was less than the presumed first day's advance of Sov armored columns. Plus it used 280mm rounds as spotting rounds, so it wasn't easy to pretend it wasn't there.
The warhead was about as big as a medicine ball, detonators, fuzes, and all. Other nuke missile warheads were even smaller. Heavy, yes, but not bulky.
Warheads require maintenance, so, left unattended in a depot someplace, their usefulness degrades. However, the usual suspects are making newer and better ones.

Getting hold of one of them does NOT require the complicity of a state actor, just of a couple of guards. So the idea that we can solve the hypo here by suggesting a real nuke delivers us from the difficulty of dealing with al Q assholes of indeterminate status is false. Given the right technical knowhow, a working nuke, designed by somebody who knows how it's done, and separated from its delivery system--presuming it had been mated in the first place--could certainly be acquired and delivered by members of a diffuse movement who consider al Q merely a brand name of iconic figure. IOW, don't think real nukes make the hypo irrelevant.
6.12.2007 4:34pm
Thomas_Holsinger:
ATRGeek,

Consider that you have contradicted yourself in these two posts:

Here you admit that prosecution on charges, as opposed to detention, entails giving the accused discovery rights which would imperil secrecy and military security:

So, the tradeoff presented by wanting to prosecute people your intelligence has revealed deserve prosecution, but being afraid that in so doing you will be forced to reveal too much about your sources and methods, is nothing new. But that does not mean we should eliminate the requirement to present your evidence of guilt and to have it tested in an adversarial proceeding, because those are fundamentally important requirements as well. In other words, if you think protecting your secrets is more important than prosecuting this person in a lawful manner, then that is a choice you may have to make, and that may mean letting them escape prosecution. But that isn't an excuse to dismantle our fundamental legal structures just so you do not have to make such choices.

Yet here you advocate an adversarial process for detention:

Rather than waiting for an end to the "war on terror", a condition we cannot even define, the detainment of a given individual should be based on the facts and circumstances related to that individual, as proved by at least clear and convincing evidence in an adversarial process, and periodically reviewed. because as you inadvertently point out, waiting instead for some global cessation of hostilities is absurd.

Requiring an adversarial process for detention of dangerous aliens clearly implies giving the detainee discovery rights every bit as injurious as those for prosecution on charges.

Either the factual showing for detention is of the sort provided by existing decisions (some or all of the several Padilla, Hamdi &Hamdan rulings) - something done unilateraly by the government with no discovery process, whatever the government's burden is (colorable claim, etc.), or it is adversarial and involves discovery rights of some sort for the detainee which would imperil secrecy and national security.

Or perhaps your definition of "adversarial process" is somewhat muddled, if not situation-dependent.
6.12.2007 4:34pm
Kazinski:
If we decide that the criminal courts should be the primary battleground for fighting Al Qaeda and the GWOT, then we might as well surrender now.

But thankfully the arguement has already be waged and won, the 9/11 Commission, Congress, the President and the clear majority American people have all made the clear determination that this is a real war with the laws of war controlling. There are just a few Federal Judges that are lagging behind the times.
6.12.2007 4:38pm
Andrew Hamilton (mail):
I think the flaw in the counter-hypotheticals raised against Professor Kerr's example is that they don't fall under the grant of executive power in the AUMF. As I read the decision, the turning point in the majority's argument was a questionably narrow definition of "enemy combatant." If al-Marri cannot be legitimately classified as one, then he is entitled to the legal protections afforded "citizens." The majority said to be so classified he would have to have born arms against the United States. I thought the dissent shot that one down quite effectively. Its my impression that all the judges agreed that the military could hold him, even under the circumstances of his case, if he was legitimately classified as a combatant. I have one question about the
evidence against him, however. He was not classified as an enemy combatant until mid 2003, suggesting that the government didn't have evidence of his sleeper agent role prior to that time. How did the government get that evidence? Was it from interrogating KSM, allegedly with the use of coercive methods? If so, what would be the legal status of that evidence, even under a military commission system?
6.12.2007 4:57pm
ATRGeek:
Holsinger,

Well, you might note that in one quote I was talking about a "prosecution", and in the second quote I was talking about a detention. Also, in American law the specific requirements of the "adversarial process" are indeed "situation-dependent". For example, in the federal courts we have different rules for criminal and civil cases.

But actually, you are right in substance: although I would suggest that the government's evidentiary burden could be a bit lower in the detention context (I have suggested "clear and convincing evidence", which is the standard for civil commitments), it is certainly possible that in a given case, the government might have to choose whether or not to seek detention if they would prefer to keep the only available evidence secret.

If you read and understood my previous post, you will understand that I do not view this as an absurdity. Again, I view it instead as just part of the general intelligence tradeoff (that sometimes the government will have to choose between using intelligence and protecting its secrets, when it cannot do both).

So again, to repeat my prior analogy: sometimes you may not be able to order the ideal troop movements because to do so would reveal too much about your sources of intelligence. And similarly, sometimes you may not be able to detain someone you view as dangerous because to do so would reveal too much about your sources. That is a decision the government would have to make in any given case.
6.12.2007 5:01pm
Anderson (mail) (www):
Its my impression that all the judges agreed that the military could hold him, even under the circumstances of his case, if he was legitimately classified as a combatant.

You're technically correct, but the majority went out of its way (see Bart's comments above, passim) to signal that, had they needed to decide the case on constitutional or other such grounds, they would have reached a similar result.

He was not classified as an enemy combatant until mid 2003, suggesting that the government didn't have evidence of his sleeper agent role prior to that time.

See the posts at Balkinization. The reason he was put into the military's custody was apparently so that he could be tortured, not because there was suddenly new evidence against him.
6.12.2007 5:06pm
ATRGeek:
By the way, this intelligence tradeoff happens in the ordinary criminal context as well. For example, the police may be reluctant to reveal an important source, and that can mean that some relatively minor crimes go unpunished.
6.12.2007 5:07pm
Anderson (mail) (www):
Everyone who hasn't recently, should quit this thread and go read Milligan (search "Justice Davis" to find where the op begins, 2/3 down the page):

Time has proven the discernment of our ancestors; for even these provisions [i.e., the Bill of Rights], expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

It's a pity that so many fail to believe this to be the case.
6.12.2007 5:15pm
ATRGeek:
Oh, and I will note once again that I think a good test is whether we would be willing to subject US citizens to the same system, including US citizens who are "merely" involved with domestic terrorist groups. That, of course, is required by the relevant Supreme Court precedents, but I think it is a wise requirement as well.
6.12.2007 5:16pm
Thomas_Holsinger:
ATRGeek,

Your proposal not only gives UNLAWFUL combatants greater rights than lawful combatants, and would eliminate any incentive for the government to detain enemy unlawful combatants, as opposed to shooting them on capture. You would let them continue to wage their war on us, AFTER capture, unless we kill them on the spot.

This is contrary to common sense as well as hundreds of years of precedent pre-dating the United States:


Finally, the laws and customs of war, older than the United States, permit the detention of enemy combatants for the duration of hostilities in order to collect intelligence and deplete the enemy's resources. That is, far from cruel, they are civilizing, designed to end war more quickly, with less carnage.

Your position as elaborated is flat out ludicrous. You do not understand the difference between war and peace, and never will.
6.12.2007 5:27pm
a knight (mail) (www):
Broken eggs are always justified as an essential element of omelette making, when the chef is doing the arguing. When it is your head being cracked open and contents spilled into the bowl for the recipe of World Without Terrorism, an opposite sense of the act's propriety is likely to cross your mind. Let me pose a non-hypothetical situation in response:

Fifteen Innocent Uighurs in Guantanamo Bay Prison for several years without cause, without receiving due process of law, having had their natural rights stripped from them in an illegitimate presidential overreach. The President/Perpetrator then refuses to allow the redress for this grievous error; of Immigrant Uighurs in America sponsoring the detainees in the US, and instead some wind up in Albania, where they have remained virtual prisoners because of the language barrier, and woefully inadequate funding, and the rest remain locked-up unconstitutionally in Guantanamo Bay. Just what part of the phrases: "No person shall" and "In all criminal prosecutions" is Mr. Bush having trouble understanding?

In the exceedingly unlikely event of your hypothetical situation occurring in reality, the proper course of action would have been for closer surveillance, and filing for a search warrant lawfully, in a manner law enforcement officers have been properly trained to do.

Although not as lame as the hypothetical situation Dershowitz used to argue for a legitimate use of torture (see end of post for proper resolution of that NeoConNumbDrum), it is still an egregious theft of the people's Natural Liberty. I hold possession of my own Natural Liberty, and have never acceded these rights to the government. You are advocating a theft of what is rightfully mine, having been endowed with this personal property at birth, by that which I perceive as The Creative. Hypothetically, does that make you an accessory?

Professor Dershowitz's reprehensible defense of human torture was presented with a hypothetical situation where one is confronted with a prisoner who has set an atomic bomb to explode in the near future at the heart of an American metro. He then asks if it is proper to torture that human to learn where the bomb has been placed. Clearly, this is a bit of semantical deceit, because if the person in charge during this hypothetical situation tortured the individual and was subsequently able to defuse the bomb, he could with confidence have any indictment on torture charges adjudged by a jury of twelve American citizens without fear of being found guilty, if the state was stupid enough to bring charges against him.

What Dershowitz was arguing for was an institutionalised acceptance of human torture, and an exclusion from criminal indictment for any official who tortured an innocent human. Contemporary conservatism's embrace of this torture defense offers insight into their hypocrisy.

What ever happened to personal responsibility for one's actions as a cornerstone of conservative thought? There are responsibilities that come with the territory of leadership. There are times you've got to walk the tight rope all by your lonesome. It's called a command decision, and the buck stops in your hand for the glory or ignominy that will flow from the effects of your choice. Contemporary Conservatives don't really believe in personal responsibility; to them it is only a gaming tactic, which enables their gleeful flogging of single mothers unmercifully.
6.12.2007 5:36pm
Derek:

Back in the day, the U.S. Army had a short-lived weapons system called the Davy Crockett. It was a nuclear artillery system. Problem was that its range, being partly recoiless rifle, was less than the presumed first day's advance of Sov armored columns. Plus it used 280mm rounds as spotting rounds, so it wasn't easy to pretend it wasn't there.
The warhead was about as big as a medicine ball, detonators, fuzes, and all. ......

Getting hold of one of them does NOT require the complicity of a state actor, just of a couple of guards. So the idea that we can solve the hypo here by suggesting a real nuke delivers us from the difficulty of dealing with al Q assholes of indeterminate status is false. Given the right technical knowhow, a working nuke, .... could certainly be acquired and delivered by members of a diffuse movement who consider al Q merely a brand name of iconic figure. IOW, don't think real nukes make the hypo irrelevant.


Richard Aubrey --

There are a couple problems I see with what you posted:

First, while I concede that it is possible to steal a nuclear weapon, modern weapons have fail-safe triggers which would significantly complicate their use.

Also, if such a weapon were stolen w/o state complicity, I would argue that we are again dealing with criminals, not "enemy combatants." Horrible criminals, but still criminals.

Second, the W54 "Davey Crockett" warhead uses an advanced design that is not thought to be available to the current up and coming nuclear actors. (Small warheads are require the best shaping and most advanced explosives).

Finally, tiny warheads have yields that usually measure in the tons (such as 22 tons for the W54), making them frankly, not that scary.

I understand your broader point -- that terrorists *could* get nukes. But frankly it is also true that this is an unlikely near-term situation.

If and when we break into a hotel room and find a real live nuke, I am willing to sit down and start rewriting the rules.

Until then, don't bring out the boogie man when what we are really talking about are train/plane and cafe suicide bombings -- basically criminal acts.
6.12.2007 5:54pm
Thomas_Holsinger:
The left and right web margins of this page seem, at least to me, to been blown out due to some software formatting issue. Does anyone else see this problem?
6.12.2007 6:05pm
Anderson (mail) (www):
Does anyone else see this problem?

I've had that happen before at the VC, but not right now. My browser's IE 6.0, if that's relevant.
6.12.2007 6:08pm
Thomas_Holsinger:
The Davy Crockett was the world's first and, AFAIK, its only, suicide nuclear weapon due to an unfortunate design feature - the warhead's blast radius was greater than the launcher's range.

Trent Telenko, who sometimes posts here, told me his father commanded a platoon of the puppies in Germany 50 years ago, and that the Crockett's unofficial operating manual stated:

Dig a hole in the ground. A DEEP hole in the ground.
Fire the Crockett at the enemy.
Jump into the hole.
Kiss your ass goodbye.
6.12.2007 6:16pm
ATRGeek:
Holsinger,

First, I am discussing enemy civilians, not enemy combatants. Combatants should--indeed, according to our treaties must--be treated as POWs unless they are tried and convicted of a crime. What I am advocating is something different than POW treatment for enemy civilians (as opposed to enemy combatants).

Second, all enemy civilians would have the same rights in this detention process. Of course, if the government wanted to prosecute an enemy civilian for an alleged crime, that would trigger additional rights as per Milligan, but all enemy civilians accused of crimes would also have the same rights in those procedures.

Third, the disincentive for government officials who contemplate simply shooting enemy civilians rather than arresting them would be murder prosecutions (assuming that these actions did not satisfy the ordinary standards for the use of deadly force). To forestall a silly objection, please note again I am talking about enemy civilians, not enemy combatants.

Fourth, I am in fact in favor of allowing the government to detain enemy civilians for a limited time, provided the government can meet appropriate burdens of proof. But if in some case the government calculated that it would be better to protect certain secrets rather than detain the relevant person, I would understand that decision. That doesn't mean I don't want such a person to be detained. It just means that I understand that sometimes the government may think that protecting the relevant secret is more important than detaining the relevant person.

Fifth, McCarthy is wrong about many things, but since he is not here to defend himself, I won't go into detail.

Sixth and finally, I think what you are failing to grasp is that in my view, our situation with respect to terrorist organizations, foreign or domestic, is neither peace nor war. That is why I believe we need a new framework, and as always that framework should be consistent with our Constitution and involve all three branches of our government acting in their appropriate roles.
6.12.2007 6:20pm
Anderson (mail) (www):
in my view, our situation with respect to terrorist organizations, foreign or domestic, is neither peace nor war. That is why I believe we need a new framework

ATR, the conservative in me is very, very leery of phrases like "neither peace nor war" and "we need a new framework." Aren't the last 6 years an example of what happens when we pretend that we're facing something unprecedented, and that a "new framework" is needed?

The existence of criminals who want to harm us, shielded in lawless regions where law enforcement doesn't avail, is not so novel as to require inventing intermediate states between peace and war, or jettisoning our precedents in favor of new frameworks.

Tyrants, or their court lawyers, typically plead novel and unforeseen emergencies. See, e.g., Carl Schmitt; or the Milligan quote above.
6.12.2007 6:38pm
Mark Bahner (www):

First, whether we are "at war" is a factual question, not a legal question. Congress declaring war is not what defines whether we are "at war."


That's what YOU say. That's not what the Constitution says. The Constitution very clearly says that Congress has the power, ""To declare War, grant letters of Marque and Reprisal, and make rules concerning captures on Land and Water."

Therefore, suppose you say we are at war, and Congress says we aren't. Who is correct and who is wrong? It seems pretty obvious to me that, as a matter of LAW, Congress would be right. "War" is a legal term, it's not a physical term like "pi." Congress can and has declared that the U.S. government is at war, e.g., in WWII. Congress can't declare that "pi is equal to 3." (Well, it can, but that would not alter the fact that it would be wrong.)


We were at war with Japan from the moment Pearl Harbor was bombed, before FDR mentioned infamy to anybody.


Again, so YOU say. That's not what the Constitution says. The Empire of Japan may have been at war with the United States government from the moment Pearl Harbor was bombed, but whether the U.S. is or is not at war with a foreign government could never be decided by the actions of a ***foreign government***.(!) Nor by any president.

For example, suppose (since Orin Kerr is fond of hypotheticals ;-)) that after the bombing of Pearl Harbor FDR had gone before Congress and given his infamy speech and request for a declaration of war, and Congress had voted by majorities in both houses NOT to declare war against Japan? That is, what if the Joint Resolution to declare war had been voted DOWN? Would the U.S. government still have been at war with the Empire of Japan? By your logic the answer would be "yes," would it not?


Second, there certainly has been a Congressional declaration of war.


Oh, really? Against what specific government(s)? And/or what specific civilians? Or has Congress declared war against the whole world? Also, are U.S. citizens included? With your answers, please provide the specific Congressional language you think supports your answers.


Search through that noncomplicated Constitution of yours -- you won't find any magic words that Congress needs to say to declare war.


Yes, that's right. Just like I won't find any "magic words" to say what is meant by the "general welfare" clause and subsequent language in Article I, Section 8.

So when Congressman James Madison contemplated a bill to aid French refugees and sarcastically commented, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents"...do you think he was legally wrong? That is, do you think that Congress actually has such a "right" (authorized power), and Mr. Madison simply didn't see it?

In WWII, Congress issued a joint resolution:


JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America:

Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared;...


Why do you think Congress needs to make declarations of war that are more difficult to interpret than that? Why is it necessary for Congress to write something that makes you think we're at war, if we're not...or makes me think we are not at war, if we are?
6.12.2007 6:38pm
ATRGeek:
Anderson,

I certainly understand the dangers that concern you. But I have three basic responses. First, we actually haven't tried doing this the right way, meaning pursuant to the Constitution and with all three branches fully involved. Second, part of the rationale for this "third way" approach is to avoid contaminating the other two ways, something which arguably has already occurred. Finally, I don't actually see this as something which involves jettisoning our precedents--rather, I think it builds on them in reasonable ways.

But I fully admit reasonable people can disagree on whether this is a good idea. And frankly, my requirement that it apply to US citizens may well be a political deal-killer, which in my mind would be an appropriate judgment for the people to make (in which case we would have democratically answered Orin's question with a "No, we prefer the status quo").
6.12.2007 6:59pm
whit:
"The existence of criminals who want to harm us"

again, the fundamental misunderstanding - the bogus premise, that thus makes your argument nonsensical.

they are NOT criminals, nor should they be treated like criminals, and with all the niceties of the criminal justice system.
6.12.2007 7:01pm
ATRGeek:
Oh, and just as I would emphasize this is supposed to apply to US citizens, I would also emphasize it isn't an emergency measure. Again, I think emphasizing these things are important so that we properly consider the stakes involved.
6.12.2007 7:02pm
Derek:
Thomas_Holsinger:

Hehe.. I feel like I am spamming here, and this is off topic... but the W-54 warhead was test fired and deployed -- and it certainly did NOT have a blast radius larger than the launcher range if fired properly.
6.12.2007 7:08pm
Mark Bahner (www):

they are NOT criminals, nor should they be treated like criminals, and with all the niceties of the criminal justice system.


No, you have it backwards. They are not soldiers, with all the niceties accorded to soldiers. They are criminals, and should be treated as such.

Consider this: U.S. veterans (soldiers!) and German and Japanese veterans (soldiers!) have actually gotten together to talk peacefully and pleasantly about WWII. That's because both sides could agree that the enemy soldiers were simply doing a job.

Can anyone imagine U.S. soldiers and members of Al Qaeda getting together 40 years from now, and saying, "Yeah, that World Trade Center battle, that was a fierce one!"?
6.12.2007 7:13pm
Anderson (mail) (www):
they are NOT criminals

Because Whit says so?

War occurs between states. Al-Qaeda is not a state. We are therefore not at war with al-Qaeda.

An "unlawful combatant," under the Geneva framework, is someone who is not protected as a POW but nonetheless engages in hostilities, and thus is triable under the law of the detaining power. In short, a "criminal."

As I tried explaining to ATR, there are very prudent reasons not to go around inventing new categories, which arguably have been concocted in practice to facilitate our new hobby of torture.

ATR, I usually don't engage in Founder-worship, but I am very skeptical of the 3 branches' ability to make any sound policy on the present facts, and in the present political situation. Indeed, part of the wisdom of Milligan is the recognition that exigency-driven law is likely to be bad law. (If I'm reading too much into Milligan, then call it the wisdom of Anderson.)

I just don't understand *why* we supposedly need to throw out the rulebook &write new ones. I can understand why the administration's "Calvinball" approach to 9/11 would make one long for a new rulebook, but I think that concedes too much to the Addington-Yoo-Schmitt perspective.

As you say, reasonable minds may differ -- but I am sincere in asking, why now?
6.12.2007 7:14pm
Anderson (mail) (www):
Can anyone imagine U.S. soldiers and members of Al Qaeda getting together 40 years from now, and saying, "Yeah, that World Trade Center battle, that was a fierce one!"?

Excellent way of putting it, sir. I wish I'd thought of that.

Off to the exigencies of domestic life now ... will check in later.
6.12.2007 7:16pm
DrGrishka (mail):
Mark,

The resolution re: War with Japan that you quote actually supports what David is saying and undermines your position.

Read the last cited clause.


That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared


As you can see, Congress recognized that even before the formal vote, "state of war" has already been "thrust upon" the U.S. The resolution merely formally recognized the already present reality.

In any event, must Congress actually declare war with those words and those words alone? What if Congress said "a state of belligerence?" Or if Congress said "It is hereby declared that our military is authorized to take whatever action necessary for however long necessary until such time as Imperial Government of Japan unconditionally surrenders?" Would that not qualify as a declaration of war? If not, why not?
6.12.2007 7:17pm
ATRGeek:
Anderson,

Well, why not now? The basic argument for a new statutory approach, subject to judicial review, is that neither modern POW doctrine nor modern criminal doctrine is a good fit for the substantive problem in question. We can go into more details, but what I would primarily suggest is that the criminal law is primarily about appropriately punishing people for prior bad acts, and the laws of war tend to assume that the condition of war will have a definable end. Those, as I see it, are the most major problems which make it difficult to treat our "war on terror" detainees under the existing bodies of law.

Note, by the way, that these other two areas of the law are both evolving themselves, and indeed arguably went through revolutionary phases within the last 60 or so years. I do respect history and traditions, however, so I am interested in learning more about matters such as how the Anglo-American legal system dealt with pirates. But it seems clear to me that over time our standards of due process have evolved, an it would not be too surprising to me to find out that pirates were treated in a way that does not substantively match up neatly with anything available today. Nor do I think it is necessarily, or even probably, the case that we would conclude the treatment afforded to pirates complied with our modern sense of due process.

Of course, I understand that exigent circumstances can make for bad decisions. But I suppose I just trust that in the long run, with all three branches involved, we will arrive at something reasonable. I would also note that there is a good chance that the domestic United States will be successfully attacked again in the future. I don't raise this possibility to suggest that we should live in fear of such an attack. But I do think the circumstances are a little less exigent now than they might be in the future.
6.12.2007 7:32pm
Derek:

In any event, must Congress actually declare war with those words and those words alone? What if Congress said "a state of belligerence?" Or if Congress said "It is hereby declared that our military is authorized to take whatever action necessary for however long necessary until such time as Imperial Government of Japan unconditionally surrenders?" Would that not qualify as a declaration of war? If not, why not?


DrGrishka:

There is a shockingly good reason why our (grand)fathers said that a "state of war... is formally declared" and did not use any other language --

They understood that vagueness in these matters would lead to future problems and a blurring of the line.

If the government had declared war on Vietnam, Korea, etc, we would probably not be having this convoluted discussion today. Instead, for largely domestic political reasons, they did not, and thus today, we must debate these issues.

I admit that modern Islamic terror would be confusing legally for us even if we had used the word "war" in the 1960s and 70s, but not *as* confusing as it is now.
6.12.2007 7:35pm
Bruce2:
Re: criminals vs. combatants:

There will of course be an exception or two, but in general everyday-speak (if not legal-speak) a criminal is someone who breaks a law for selfish reasons (to get richer, to satisfy urges, to get somewhere faster, etc.). An unlawful combatant is someone who breaks a law for the purpose of destroying others.

Al-Qaida and other terrorists clearly are in the second category. (If you're not convinced, ask yourself why we even have "laws of war" -- why not just prosecute captured enemy soldiers as common criminals?)
6.12.2007 7:37pm
DrGrishka (mail):
Derek,

I will concede the point that it is better to use clear language. However, does lack of clear language ipso facto mean that there is no state of war?
6.12.2007 7:47pm
Thomas_Holsinger:
Rebooting didn't help with IE 7 here at my office. Now I can see only half the screen on this page. I'll see how it looks with IE 6 from home tonight.
6.12.2007 8:07pm
Kazinski:
Anderson:

The existence of criminals who want to harm us, shielded in lawless regions where law enforcement doesn't avail, is not so novel as to require inventing intermediate states between peace and war, or jettisoning our precedents in favor of new frameworks.


You've lost that arguement. Decisively. Congress reacted to Hamdem by passing the MCA. If they have to amend it again to answer the 4th circuit they'll do it again ASAP. The GOP because they believe its the right thing to do, the Dems because they don't want it to be a campaign issue. And most importantly because the American people will demand it of them. Other than Dennis Kucinich and Ron Paul no presidential candidate would dare utter sentiments like that. Even while John Edwards may fret about the "war on terror" construct while fighting for the moonbat vote, he'll leave plenty of room to backtrack if he gets the nomination. The war on terror as a criminal problem is a non-starter, politically and practically.

I don't care whether you ever realize it, but either the Supreme Court or Congress will diabuse the 4th Circuit of its misapprehension, and then just about everyone will be on the same page.
6.12.2007 8:20pm
ATRGeek:
Bruce2,

First, obviously some criminals intend to destroy others (like murderers).

Second, captured combatants are not prosecuted as criminals because even though they do things like willfully destroy property and kill people, we do not believe that they are morally culpable for doing so, and therefore we do not believe they should be punished. In other words, under our laws criminals have done something wrong, but POWs have not.

Now, sometimes combatants do commit crimes, in which case they can be tried and punished as criminals. But if you want to treat members of al Qaeda as combatants who have commited crimes, you can't skip any of the steps (you have to give them a status hearing to confirm they are combatants, and then you have to give them a trial before you can punish them as criminals).
6.12.2007 9:03pm
Anderson (mail) (www):
Kazinski: Congress reacted to Hamdem by passing the MCA.

Right. And, living in a democracy, believing that the Congress passed a bad law, I'm arguing against it. Why is that surprising? If I believe abortion is wrong, am I supposed to shrug and say, "well, Roe decided THAT"?

ATR, the conversation seems to've moved to Kerr's new thread, and I'm not sure how much time I can take from my 2-year-old to ponder the issues tonight ... I'm not sure why preventive law enforcement is so impossible under the present law, but perhaps that will be argued in more detail elsewhere.
6.12.2007 9:15pm
Derek:
DrGrishka: Well... I will concede that Korea and Vietnam and even the Gulf War I and II are de facto "wars" even though they were not declared as such. They met all of the necessary factual requirements to be counted as wars except for a formal declaration.

However, I do not and cannot possibly see that the "war on terror" is a war.

It might be a struggle, it might be a major national security interest, it might even be more important than the Vietnam war, but it is NOT a war.

The problem as I see it, is that Korea and Vietnam set the stage for the current confusion. BECAUSE of them, (and because of the war on drugs) GWB and Co. felt comfortable calling this a war on terror.

Furthermore, the media is too stupid to distinguish between the occupation in Iraq and the war on terror, which are two quite different things.

Hence, all the confusion, which is exactly what Bush wants, because it makes it easier for him to do what he wants.
6.12.2007 9:18pm
Bob from Ohio (mail):
I'm still trying to stop laughing over the "conservative in me" line. Must be a nano particle.

Congress and the President keep passing laws and the Judiciary keeps going out of their way to evade the effect of the laws.

AUMF authorizes detentions but since the Congress did not talk about staututory habeas, the detaineees have the right. So Congress passes the DTA and says no statutory habeas. So the Courts say the DTA was not retroactive. So, Congress passes the MCA which gives a form of statutory habeas in one court only and makes it retroactive. Now that isn't good enough for these 2 judges.

Many in the judiciary share the views of many commentators here who just don't think this is really very serious. It is just terrified people misled by "Stalinists" and "torturers" into giving up their freedoms.

The dissent has it right, the majority wrong and I hope it is reversed. If this makes me either a tyrant, or a court lawyer of tyrants to some, so be it. I don't think much of you either.
6.12.2007 9:23pm
Andrew J. Lazarus (mail):

So, Congress passes the MCA which gives a form of statutory habeas in one court only and makes it retroactive. Now that isn't good enough for these 2 judges.
Three judges. On this point, the dissenter concurred. As well he should, because al-Marri has not been given the hearing envisioned in MCA to show that he is any sort of combatant at all.

I find it incredible how many people approve of executive detention on one man's say-so.
6.12.2007 9:33pm
ATRGeek:
Anderson,

Actually, it would be profoundly dangerous to turn the criminal law toward a primarily preventive purpose, if you think for a bit about the implications of that. In that sense, the for-the-most part restriction of criminal law to punishing past acts is an important limitation.
6.12.2007 9:45pm
David M. Nieporent (www):
That's what YOU say. That's not what the Constitution says. The Constitution very clearly says that Congress has the power, ""To declare War, grant letters of Marque and Reprisal, and make rules concerning captures on Land and Water."
It very clearly does say that. It very clearly does not say "To determine whether we are at war."
Therefore, suppose you say we are at war, and Congress says we aren't. Who is correct and who is wrong? It seems pretty obvious to me that, as a matter of LAW, Congress would be right. "War" is a legal term, it's not a physical term like "pi."
That is simply untrue. War is a fact -- a military conflict.

Again, so YOU say. That's not what the Constitution says.
The constitution doesn't say (to use your example) that pi isn't 3, either. Nonetheless, I think we're all quite comfortable in concluding, regardless of that rather significant omission, that pi is not 3.
The Empire of Japan may have been at war with the United States government from the moment Pearl Harbor was bombed, but whether the U.S. is or is not at war with a foreign government could never be decided by the actions of a ***foreign government***.(!) Nor by any president.
Of course it can. Whether we are at war is a factual question.
For example, suppose (since Orin Kerr is fond of hypotheticals ;-)) that after the bombing of Pearl Harbor FDR had gone before Congress and given his infamy speech and request for a declaration of war, and Congress had voted by majorities in both houses NOT to declare war against Japan? That is, what if the Joint Resolution to declare war had been voted DOWN? Would the U.S. government still have been at war with the Empire of Japan? By your logic the answer would be "yes," would it not?
Absolutely. Congress cannot negate a war by voting against a declaration of war any more than it can negate pi by voting to declare pi to be something else.

And speaking of hypotheticals: by your logic, if instead of a Japanese attack on Pearl Harbor, December 7th had involved an equally devastating German attack on Capitol Hill, such that all members of Congress had been killed, we could never be at war with Germany because Congress would be unable to declare it. German troops could be landing on our shores, occupying our cities, shooting at our troops, but according to you, we would not be at war with Germany. It would just be Mardi Gras or something.

Oh, really? Against what specific government(s)? And/or what specific civilians? Or has Congress declared war against the whole world? Also, are U.S. citizens included? With your answers, please provide the specific Congressional language you think supports your answers.
For starters: "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, " -- AUMF, 9/18/2001.

So when Congressman James Madison contemplated a bill to aid French refugees and sarcastically commented, "[...] ...do you think he was legally wrong? That is, do you think that Congress actually has such a "right" (authorized power), and Mr. Madison simply didn't see it?
Not at all. This is completely inapposite. You'll note that Madison doesn't say anything about magic words here; he doesn't argue (as you are here) that the bill is invalid because Congress didn't recite the phrase "general welfare." He argues that the Constitution didn't grant Congress the power to pass a law to do that. Whereas Congress clearly does have the power to declare war, so the only question is what words (if any) it must use.
6.12.2007 10:09pm
Mark Bahner (www):

The resolution re: War with Japan that you quote actually supports what David is saying and undermines your position.


No, it doesn't. If you think it does, please answer my question of David:


For example, suppose (since Orin Kerr is fond of hypotheticals ;-)) that after the bombing of Pearl Harbor FDR had gone before Congress and given his infamy speech and request for a declaration of war, and Congress had voted by majorities in both houses NOT to declare war against Japan? That is, what if the Joint Resolution to declare war had been voted DOWN? Would the U.S. government still have been at war with the Empire of Japan?


If you have the courage and honesty to answer that question correctly, it will be absolutely clear that David is unquestionably wrong. The logic is absolutely inescapable and airtight:

If Congress had voted down the war resolution against Japan in WWII, we would NOT have been at war with Japan.

Therefore, David is absolutely and unquestionably wrong. Whether or not the U.S. was at war with Japan depended on what the U.S. Congress said, not what the Japanese military did.

The quote you refer to is merely the Congress saying, "We regret having to declare war, but we're doing so because of what the Japanese government did." That does NOT mean that the war started when the Japanese government (military) attacked. If it DID mean that the war started when the Japanese government attacked, there would have been no need for the Congressional declaration of war. (Because even if the declaration of war had been voted down, we STILL would have been at war.)

Basic logic. Absolutely irrefutable.
6.12.2007 10:25pm
Mark Bahner (www):
I wrote,


For example, suppose (since Orin Kerr is fond of hypotheticals ;-)) that after the bombing of Pearl Harbor FDR had gone before Congress and given his infamy speech and request for a declaration of war, and Congress had voted by majorities in both houses NOT to declare war against Japan? That is, what if the Joint Resolution to declare war had been voted DOWN? Would the U.S. government still have been at war with the Empire of Japan? By your logic the answer would be "yes," would it not?


You reply:


Absolutely. Congress cannot negate a war by voting against a declaration of war any more than it can negate pi by voting to declare pi to be something else.



Wow! That's a mind-boggling answer...particularly since you appear to be a lawyer.

If the U.S. government is at war independent of whether or not the U.S. Congress declares war, why do you think the Founding Fathers gave the "power" to declare war to the Congress? Didn't the Founding Fathers have better things to do with their time than to decide whether Congress could or could not make absolutely meaningless declarations?
6.12.2007 10:41pm
DrGrishka (mail):
Mark,

I am always wary of someone who proclaims that his legal view is "absolutely irrefutable."

Actually, even if Congress voted down declaration of war, we would still have been at war. Geneva Conventions actually contemplate a state of affairs where one state does not recognize legal state of war, but nonetheless it requires that all detainees be treated as prisoners of WAR.

Had Congress refused to declare war, and decided to sit back, FDR would have still had the authority to arrest and detain any Japanese soldier who crossed into the U.S. and to hold him as a POW.

You are, however, partially right. A Congressional declaration of war is not necessary for the President to order the military to engage in hostilities and to follow customary rules of war during those hostilities.

Finally, you, once again, fail to answer the question of whether war can only be declared with the sacred words "war is declared." Where does it say that? Why can't Congress use any other formula it wishes?
6.12.2007 10:46pm
Bruce2:
ATRGeek,


First, obviously some criminals intend to destroy others (like murderers).

Sorry, I was in a rush and wasn't as clear as I should've been. Run-of-the-mill murderers tend to have more selfish motives against specific individuals (saving face, killing a spouse's lover, etc.) or personal urges (homicidal maniacs), but not against our society. Al-Qaida et al. have nothing selfish like that; they target our country as a whole, which is exactly what they (or any state actor) means when they declare war on us.

Now, sometimes combatants do commit crimes, in which case they can be tried and punished as criminals. But if you want to treat members of al Qaeda as combatants who have commited crimes, you can't skip any of the steps (you have to give them a status hearing to confirm they are combatants, and then you have to give them a trial before you can punish them as criminals).

No, here again the same applies. "Combatants who have committed crimes" bring to mind people who have violated laws pertaining to treatment of other specific people, even though we have no problem with their job (as warriors) of trying to destroy the enemy infrastructure as a whole.

An Al-Qaida cell clearly fits the combatant mindset (crimes against the whole) rather than the ordinary criminal mindset (crimes against individuals)... and moreover, that's exactly what they claim to be doing, so I don't see why anyone sees the criminal justice system (rather than the military system) as the appropriate place to deal with them.
6.12.2007 11:01pm
Bruce2:
Now, sometimes combatants do commit crimes, in which case they can be tried and punished as criminals. But if you want to treat members of al Qaeda as combatants who have commited crimes, you can't skip any of the steps (you have to give them a status hearing to confirm they are combatants, and then you have to give them a trial before you can punish them as criminals).

Sorry, I missed the most important point I wanted to make.

The hearing to confirm this hypothetical Al-Qaida cell's status as combatants isn't subject to regular criminal justice procedures like the 4th Amendment (on the battlefield, we don't send out investigators with search warrants to decide whether the guy who looks like an enemy soldier really is one, and if he admits to being one we certainly don't let him go free if he hadn't first been Mirandized). So, in this hypothetical situation, the clear evidence turned up by a search that doesn't meet 4th Amendment requirements in criminal court would still be usable to define these people as enemy combatants and hold them as such.

(But, if the search had turned up evidence of cocaine distribution (as someone asked) instead of evidence of terrorist plots, it becomes an ordinary criminal matter and the 4th Amendment restriction then applies. And if it turned up both, the evidence wouldn't be usable in a drug trafficking trial but it would be usable in holding the same people as enemy combatants.)
6.12.2007 11:11pm
ATRGeek:
Bruce2,

Again, making war is not itself a crime, so one cannot say that all combatants have committed a "crime against the whole". Incidentally, wars are also fought for selfish reasons.

Anyway, you are right that there are special crimes that occur in the context of war. We have in place a method for dealing with this: detained enemy combatants can be tried for both ordinary crimes and war crimes by courts martial. The courts martial in turn are subject to their own procedures and rules of evidence.
6.12.2007 11:26pm
Thomas_Holsinger:
ATRGeek,

Now you seem to be waffling. Is your definition of "enemy civilian" by any chance that used by the majority in Al-Marri?

We're not going to Quatar and grabbing civilians off the street to bring them here to detain. We're detaining foreigners here whom their own governments don't want back, because they really are terrorists. And we interned lots of enemy civilian foreigners in the U.S. who weren't of Japanese descent, such as the mother of a baseball player you may know of, by the name of Joe DiMaggio.

It is normal, necessary and appropriate to detain enemy civilians in war when they are residents of your country.

In this instance we are at war with transnational foreigners whose own governments don't want them. So we absolutely, positively, can detain foreign civiilan residents of the U.S. who adhere to our enemies, unless their governments want them back.

In which case we turn them over to their own governments, which caused great consternation to Her Majesty's Government. The Blair govt. thought it was making an empty public relations gesture to its left-wing back-benchers and really, really, did not expect or want us to take them seriously and happily evict those nasty British civilians from Gitmo and put on the plane to Heathrow.

Note also that Hamdi was repatriated to Saudi Arabia (he had dual citizenship and, when he renounced ours, the Sauds said they'd take him, and did).

The detention of resident foreign nationals in wartime has always been a political issue between the respective governments involved. Only in this war has the federal judiciary claimed jurisdiction over the matter. The federal judiciary has of late quite overthrown the doctrine of separation of powers, and encroached on the powers of the executive and legislative branches.

Mr. Bahner,

You and the people discussing the validity of the Congressional authorization to use military force may find this web page informative. Real Player is required to use the audio link at the bottom of the page.
6.12.2007 11:38pm
Mark Bahner (www):

Actually, even if Congress voted down declaration of war, we would still have been at war.


If we would have been at war with Japan independent of whether or not the U.S. Congress declared war against Japan:

1) Why did the Congress even bother to declare war against Japan? And why did Congress also bother to make the LATER declaration of war against Germany?

2) Why do you think the Founding Father gave Congress the "power" to make meaningless declarations? If the U.S. is at war regardless of what the Congress says, why even bother to put that into the Constitution.


Finally, you, once again, fail to answer the question of whether war can only be declared with the sacred words "war is declared."


Congress and the President CAN do whatever they want, regardless of what the Constitution says. That is abundantly clear.

I'm only saying that the Constitution does not authorize presidents to wage wars absent Congressional declarations of war. And I never said that the declaration must include the words "war is declared." I merely gave an example of a constitutionally legitimate declaration of war, and have pointed out that no such Congressional declaration currently exists.
6.12.2007 11:52pm
Mark Bahner (www):
Mr. Bahner,


You and the people discussing the validity of the Congressional authorization to use military force may find this web page informative. Real Player is required to use the audio link at the bottom of the page.



Mr Holsinger,

I guess you're about...what, 12?

I guess if you can't put forth a cogent legal argument, you can always pound the table, eh?
6.12.2007 11:57pm
DrGrishka (mail):
Mark,

On what particular grounds do you reject AUMF as a declaration of war?

Second, a declaration of war on Japan and Germany were in large part political statements. But there is litlle question that whether or not there is an official declaration of war there can a) be a "state of war" and b) there can be prisoners of war captured as a result of various hostilities.
6.13.2007 12:11am
ATRGeek:
Holsinger,

I'd actually cite Milligan as an example of an enemy civilian, but obviously the Fourth Circuit found that al-Marri was in the same category as Milligan.

And I don't know how many times I have to repeat it, but I do believe enemy civilians who were lawfully residing in the United States, or in fact are citizens of the United States, can lawfully be detained, provided they are afforded due process. Of course, that does not mean they have no right to petition for a writ of habeas corpus, as Milligan shows. Hence, what happened in al-Marri is hardly a new exercise of the federal courts: it is just a repeat of Milligan.
6.13.2007 12:18am
Thomas_Holsinger:
ATRGeek,

Mrs. DiMaggio was not afforded any process whatever. The FBI came and grabbed her from her home in San Francisco, California, because she was a citizen of a country we were at war with (Italy). She had no habeas corpus rights. She did not ask the courts to intervene. She could not have asked the courts to intervene. They had no jurisdiction as she was only being detained as an enemy alien in an internment camp during a formally declared war.

A large number of Congressmen and Senators had words with President Roosevelt and other members of his administration on the subject, though, largely variants of, "Are you out of your f***ing mind?!", and she was quickly released.

AFAIK, this is the very first war in the history of the United States in which federal courts have asserted jurisdiction over the detention of foreign nationals (as opposed to American citizens) during hostilities authorized by Congress.

Mr. Bahner,

Discussions with you are most effectively conducted by recorded statements. Your faith is not fettered by reason.
6.13.2007 1:12am
Elmer (mail):
Late to the party, but another Soviet agent knew we had cracked the Verona code, and we knew about that agent, yet the intelligence people refused to allow that information to be used against Hiss. I do not know why that decision was made, but simple pig-headedness seems likely.
6.13.2007 1:23am
ATRGeek:
Holsinger,

If she didn't ask the courts to intervene, how do you know she had no right to petition for habeas corpus?
6.13.2007 1:25am
Riley Still (mail):
Orin:

You seem to draw a distinctive difference between "Taliban Soldiers" and everyday al Qaeda cell members. What is it?

Do Taliban Soldiers wear uniforms (if so, I haven't seen it on TV)? Do they have dog tags? Have they sworn to abide by international conventions? Are they representatives of a sovereign nation?

As far as I can tell, al Qaeda cell members are like our special ops soldiers, but without the uniforms, or the conventions, or the dog tags, or the sovereign nation. Or they are like Taliban soldiers, without ...

Why can't we just declare them to be al Qaeda soldiers and treat them as "enemy conbatants?"

Riley
6.13.2007 1:26am
David M. Nieporent (www):
Mark Bahner:
If the U.S. government is at war independent of whether or not the U.S. Congress declares war, why do you think the Founding Fathers gave the "power" to declare war to the Congress? Didn't the Founding Fathers have better things to do with their time than to decide whether Congress could or could not make absolutely meaningless declarations?
Your argument is of the form, "These words can only mean X. You say that they don't mean X. If you're right, then they must not have any meaning. Therefore, they're meaningless. Since nobody would enact meaningless words, that doesn't make sense. Therefore, they must mean X." I trust you see the fallacy of this form of argument: it comes in the very first assumption. Your assumption that the power to declare war can only mean one thing is wrong. Therefore, your conclusion that it either means that, or it means nothing, is also wrong.

Your error is in thinking that the power to declare war is "meaningless" if it does not determine whether we are at war. (Indeed, it's not clear what is "meaningful" about the power to declare war in your formulation.) The fact that a declaration of war is not needed to create a state of war does not mean that a declaration of war is "meaningless."

Note that the original text of the Constitution was changed: it first granted Congress the power to "make war," and then that was changed, after debate, to "declare war," recognizing that the two were not the same. You may want to study the Quasi-War with France, or the war against Tripoli (the "Barbary States."). Declarations of War had certain formal effects, particularly in diplomatic relations with allied or neutral nations, but they did not determine whether we were at war.


I note you failed to answer my hypothetical: if a sneak attack destroyed Congress, would that mean we were never at war even if enemy troops were landing on our shores, attacking us, and occupying our territory?
6.13.2007 5:51am
ATRGeek:
Riley Still,

The Geneva Convention do not require combatants to wear a uniform. They merely require "a fixed distinctive sign recognizable at a distance."

In CSRT and ARB hearings, the United States has cited at least two insignia used by the Taliban: black turbans and olive drab jackets.

As for why we can't just declare anyone associated with al Qaeda to be a combatant: our law recognizes that civilians can be associated with our enemies, even to the point that they are planning attacks on US military installations (those are the facts of Milligan). So, our law requires a distinction between enemy civilians and enemy combatants, and members of al Qaeda "cells" could in fact be civilians (like Milligan).
6.13.2007 8:54am
ATRGeek:
To sum up a bit:

Orin wanted to put something like all violence (maybe all anti-social disorder) on a single scale between crime and war. The main objection is that war and crime are different in kind, not degree.

Some implications of this objection:

First, if all violence/disorder is not on a single scale between war and crime, then you cannot show that some violence/disorder is war-like simply by showing that it is not criminal-like, or vice-versa.

Second, our categories are necessarily going to be more complicated than just "criminal" and "enemy combatant". Indeed, even in the crudest version of this, we would have at least four categories: criminal/enemy combatant, non-criminal/enemy combatant, criminal/non-enemy-combatant, non-criminal/non-enemy-combatant.

But really, even that is indeed too crude. For example, the law recognizes that in war there is more than one way to be an enemy (you can at least be either an enemy combatant or an enemy civilian). Indeed, it also distinguishes between our own combatants and civilians. So, at a minimum we need eight categories: criminal/enemy combatant, non-criminal/enemy combatant, criminal/enemy civilian, non-criminal/enemy civilian, criminal/own-combatant, non-criminal/own-combatant, criminal/own-civilian, non-criminal/own-civilian.

And hopefully that richer set of classifications (or some richer set of classifications) will help us deal with these controversial classification problems.
6.13.2007 9:58am
Mark Bahner (www):
David Nieporent:


I note you failed to answer my hypothetical: if a sneak attack destroyed Congress, would that mean we were never at war even if enemy troops were landing on our shores, attacking us, and occupying our territory?


I never answered your question because after Thomas Holsinger's comment, I thought I'd wait until only adults desiring serious discussion were still around. Plus, the answer would be very long, and it was a weeknight. Here's my answer:

It seems to me almost certain that the Founding Fathers in 1787 could not envision a time when a single warhead from a rocket or supersonic airplane, launched totally in secret, could hit the Capitol Building and kill everyone in the building, or even almost everyone in the whole city. That's why they wrote the Constitution with an *amendment* process...to deal with later circumstances beyond their amazing foresight.

Right now, absent some sort of Constitutional amendment, we are in legal limbo if some attack were occur where so many members of Congress were killed instantly that it was not possible to obtain a quorum. I suspect that, were such an attack to occur, the remaining members of Congress would claim their votes were legally binding, even if there weren't enough people for a quorum. Conversely, it's possible that various states whose members had all been killed would try to insist that votes should only be valid when replacements had been made by their state governors (or whatever manner the states appoint replacements for people who die in office). They would insist that such replacement could make votes electronically from the states they were in, via the Internet. This would potentially be problematic, and it's unfortunate that Congress does not appear to think about such things and amend the constitution if necessary, to deal with such potential situations in advance.

As far as the details of your hypothetical: Who is the "enemy" in your hypothetical? Canada? Mexico? Russia? China? Iran? Al-Qaeda? Extra-terrestrials?

Only if you say "Extra-terrestrials"…or perhaps "Russia" or "China"…would I agree that it is even remotely possible that the enemy COULD "occupy our territory." Never in at least the last several centuries--if not all world history--has any one country had such overwhelming military superiority as the United States compared to other countries in 2007. (PLUS…do you really have any doubt that if Russia or China attacked the U.S. that Europe and Japan, and most of the rest of south Asia, would join the battle on the side of the U.S.? Do you really think a bunch of democracies would join the battle on the side of a non-democracy against a democracy?)

If you are talking about Al-Qaeda, it is simply not credible that they could ever "occupy" even 4 square miles of U.S. territory for even one day. So you might as well pose the hypothetical about how the U.S. would deal with the excrement if pigs could fly.

It amazes me how vastly people in the U.S. misapprehend Al-Qaeda as a military force. They are simply not a military force in any reasonable sense of the word. They are criminals, nothing more. They may be able to conduct surprise attacks--e.g. buying and detonating a nuclear device in a major U.S. city--that kill even millions of people. But they will never "occupy" even such remote cities and towns as Douglas, AZ; Eastport, ME; or Nome AK, let alone Washington DC or any other significant U.S. city.

Let's look at the facts (and these are facts, not matters of law!):

The U.S.: population, ~300 million; national income, approaching $10 trillion. Military hardware: almost unfathomable. Literally 10s of thousands of tanks, thousands of aircraft, several thousand nuclear warheads, including tactical nuclear warheads ("small" yield devices capable of pinpoint targeting).

Population and incomes of countries that can be considered good allies of the U.S.: certainly over 500 million, with incomes of at least another $10 trillion. Military hardware: combined probably equaling or even exceeding the U.S.

Al Qaeda: population: probably not even 300,000 (including women and children). Total income: almost certainly under $3 billion. Military hardware: some light arms. No tanks. No airplanes (other than maybe a purchased Cessna or two, and potentially a hijacked airliner). No rockets, other than possibly some Katyushas that have absolutely zero military value. Looking to buy a nuke. I mean, c'mon!

So if your "enemy" was Al-Qaeda, no, there is no credible way we could EVER be at war with Al-Qaeda. They are not a government, they are criminals. Only governments can be at war with the United States government. If Al Qaeda destroyed the Capitol (or even Capital) it would be a crime...unless they were deliberately aided by the incredibly stupid government of some country.

Now, I have a followup question for you. You say that even if Congress had voted DOWN the Declaration of War against Japan in WWII, we STILL would have been at war with Japan.(!!!!! Again, it boggles the mind.)

OK, suppose the Declaration of War had been voted down, and we had not had any remaining military actions relative to Japan the remaining 3.5 years of WWII (e.g. all the fighting occurred in Europe). Would we have been at war with Japan all those 3.5 years, even though not a single battle took place? If yes, what if Russia had then conquered Japan, and set up a communist government...would then be at war with that communist government? Or what if Japan had emerged unscathed from WWII, and evolved into a democracy over the next 1-2 decades. Would we be at war with Japan for all that time?
6.13.2007 1:18pm
Mark Bahner (www):

Indeed, it's not clear what is "meaningful" about the power to declare war in your formulation.


Well, it should be clear. Especially to someone with a law degree. What's meaningful about the power of Congress to declar war in "my formulation" (actually, I can't take credit for the Constitution, though I appreciate the thought!) is that a President can not legally wage war, unless the Congress has first declared war.
6.13.2007 1:51pm
Andrew J. Lazarus (mail):
They had no jurisdiction as she was only being detained as an enemy alien in an internment camp during a formally declared war.
I hardly know where to begin. (1) Al-Marri isn't in an internment camp. He is imprisoned, for much of that time incommunicado. Big difference. (2) Italian aliens had a recognized government to look after their conditions; the Swiss (I believe) as the agreed neutral power, and for that matter the Italians indirectly, who could retaliate against American aliens caught in Italy. Al-Marri? Nothing comparable.

All this work to find some justification for something unjustifiable: the President/Decider wants the right to imprison anyone he chooses, wheresoever they may be (in particular, not in any sort of battle zone).
6.13.2007 1:52pm
pacified (mail) (www):
I know what should happen to them. They should have evidence brought against them, charges levied, and the government has to prove it.

Boy, I'm crazy, I know.
6.13.2007 4:01pm
David M. Nieporent (www):
Mark: speaking of unserious replies, your claim that the founding fathers couldn't have conceived of such an attack is ludicrous. Invasion by French and British forces was a recurrent worry over the first few decades of this country's existence. In 1814, British troops were in Washington, and burned the White House. (Yes, I know Congress had previously declared war, so don't play 'gotcha' on that point. My point isn't that the War of 1812 was an undeclared war; my point is that the founding fathers certainly contemplated -- and had reason to contemplate -- foreign invasion and occupation.) Enemies didn't need to use planes to crash into the Capitol and kill our representatives; let's say they landed troops in Washington and arrested most or all of the members of Congress before a vote to declare war had taken place.

The enemy in my hypothetical was Germans in 1941 -- as you could see if you had bothered to read what I wrote -- but it could just as easily have been British in 1812.

Now, I have a followup question for you. You say that even if Congress had voted DOWN the Declaration of War against Japan in WWII, we STILL would have been at war with Japan.(!!!!! Again, it boggles the mind.)
That's correct -- just as I say that even if Congress had voted to make pi 3, it STILL would have been 3.1415...

As for the rest of your hypothetical -- we'll ignore the ludicrous idea that Japan could bomb our military base and kill thousands of American servicemen and we would not respond militarily over the next four years -- a war ends when both sides agree that it has ended. What's so complicated about that? That's true whether the war was formally "declared" or not.


Well, it should be clear. Especially to someone with a law degree. What's meaningful about the power of Congress to declar war in "my formulation" (actually, I can't take credit for the Constitution, though I appreciate the thought!) is that a President can not legally wage war, unless the Congress has first declared war.
You seem to be trying to rewrite the Constitution, so you might as well take credit for it. Let's put it this way: the Constitution has never, in 218 years, been interpreted the way you've decided to interpret it in 2007.

Even putting aside wars with Indian tribes, less than a decade after the Constitution was ratified we were waging war against major foreign powers without declarations of war.
6.13.2007 6:12pm
DonBoy (mail) (www):
we'll ignore the ludicrous idea that Japan could bomb our military base and kill thousands of American servicemen and we would not respond militarily over the next four years.

It's ludicrous in retrospect, because that's not what happened, but a) it was the Japanese intention that the US decide that having a war with Japan wasn't worth it after the attack, and b) under the name "shock and awe", it's been part of US military theory in the recent past. So such things are thinkable, and denying the hypo doesn't answer it. (You might be better off arguing that rather than there being a current war in that case, that there had been one and the US had surrendered, thus ending it.)
6.13.2007 9:40pm
Krishna (mail):
The distinction between "foreigner/citizen with links to overseas groups" and "local (terrorist) militia" is also a little strange. How does one know that someone like Al Marri has ties to a foreign terrorist group without due process, unless one believes the executive branch's assertions? This is another reason why the distinction between people like McVeigh and the member of an "Al Qaeda" terrorist cell seems a bit artificial to me.
6.14.2007 2:07am
Barry (mail):
Owen: "It seems to me that you've gone out of your way to create a scenario where they are only caught because of some intrusive and unconstitutional action, as if that would be the only way they would have been stopped. "

It's amazing the lengths that right-wingers will go in brewing up hypothetical examples where certain policies give them what they want. Meanwhile, they ignore the vast numbers of examples in the real world, which illustrate quite clearly what *does* happen, given those policies.
6.14.2007 9:19am
Dave W. (mail) (www):
A Mossad cell of five individuals, all citizens of Israel, enter the United States on art student visas. The cell members' plans are to send anthrax through the mail to prominent politicians and media officials, and they rent a hotel room in Trenton, New Jersey to draft and assemble the bio-terror letters. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Israeli men in the hotel staying in one room and acting very secretively.

The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the weaponized anthrax along with several photographs of the USS Liberty and the King David Hotel attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.

The men are arrested and charged criminally. A search of the hotel room discovers all the anthrax-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the attacks will be blamed on Al Queda so that Islamic parts of the world will be turned into "glass parking lots."

Same result?
6.14.2007 11:49am
Mark Bahner (www):

It's ludicrous in retrospect, because that's not what happened, but a) it was the Japanese intention that the US decide that having a war with Japan wasn't worth it after the attack, and b) under the name "shock and awe", it's been part of US military theory in the recent past. So such things are thinkable, and denying the hypo doesn't answer it. (You might be better off arguing that rather than there being a current war in that case, that there had been one and the US had surrendered, thus ending it.)


Exactly, DonBoy. If David Nieporent wanted to argue that Congress voting DOWN a Declaration of War would amount to unilateral surrender, that would at least be logical.

It's simply not logical, or defensible according to the Constitution, to say that Congress could vote DOWN a Declaration of War against Japan, but the U.S. government would STILL be at war with Japan.

Hasn't Mr. Nieporent ever heard "No means no?" ;-) Or that Congress makes the laws in this country?
6.14.2007 1:31pm
Mark Bahner (www):

It's amazing the lengths that right-wingers will go in brewing up hypothetical examples where certain policies give them what they want.


Please don't use the term "right-wingers." I'm a libertarian, and I consider myself far to the right of Orin Kerr (and G.W. Bush, and all the members of the Supreme Court, and every single person in Congress, with the sole exception of the Honorable Ron Paul of Texas).
6.14.2007 1:41pm
Mark Bahner (www):
David:

You write, "As for the rest of your hypothetical -- we'll ignore the ludicrous idea that Japan could bomb our military base and kill thousands of American servicemen and we would not respond militarily over the next four years..."

OK, let's modify the hypothetical, as I partially described in a comment at a later posting posting by Orin Kerr. Let's say that hypothetically:

1) The Japanese attack Pearl Harbor on December 7, 1941. Just as in real life. But in this case, they completely wipe out the U.S. Pacific fleet. All the ships that were actually out to sea and didn't get destroyed in 1941 get destroyed in this hypothetical situation.

2) Miraculously, there is no one at all in any of the ships, and the Japanese kill no one...military or civilian. All they do is completely wipe out the Pacific fleet.

2) FDR makes his same "infamy" speech and requests a Congressional Declaration of War. But due to the fact that the entire Pacific Fleet was wiped out, and due to the fact that no one was killed, a majority of Congress vote not to declare war, thinking to avoid the deaths and money involved with fighting Japan.

3) The Japanese, having accomplished their goal of completely knocking the U.S. Pacific fleet, make no more attacks, and instead consolidate their positions in China and Korea.

4) Germany declares war on the U.S. as occurred in real life, and the U.S. fights with the Allies and wins the war in Europe, as occurred in real life.

5) The U.S.S.R., because the war in Europe is so much easier with the U.S. fighting only in Europe (not Europe and the Pacific) invades and conquers Japan (while the fighting in Europe is still going on). They install a communist government.

In your expert legal opinion, in this hypothetical situation:

1) When was the U.S. "at war" with Japan?

2) When--if ever--did the U.S. war with Japan end?
6.14.2007 6:20pm
David M. Nieporent (www):
It's simply not logical, or defensible according to the Constitution, to say that Congress could vote DOWN a Declaration of War against Japan, but the U.S. government would STILL be at war with Japan.

Hasn't Mr. Nieporent ever heard "No means no?" ;-) Or that Congress makes the laws in this country?
And if war were a "law," that would make sense. You just can't get your head around the fact that a war is a conflict between two militaries, not a mere legal state of affairs.

In your hypo, the U.S. was at war with Japan when they attacked us. We stopped being at war when both sides decided they no longer wanted to be at war. Under your scenario, that would presumably be when the Soviets conquer Japan.
6.14.2007 11:18pm
DonBoy (mail) (www):
In your hypo, the U.S. was at war with Japan when they attacked us. We stopped being at war when both sides decided they no longer wanted to be at war.

I think you're not getting the hypo, which has become a bit muddled in the back-and-forth but is first presented at the end of Mark's posting at 12:18pm on 6/13, and is then spelled out in more detail in his 5:20pm 6/14 posting. (You may not have seen that message -- maybe not refreshed your browser? -- since your latest reply quotes his previous message but not his latest. This might explain why we have two sides that can't imagine how anyone could take the opposing position.)

No, in the hypothetical as he and I have been thinking of it, after Pearl Harbor, neither side wants to be at war -- Japan because they've gotten what they want, and America because they decide it's not worth it -- and there is no fighting between them. Re-read Mark's points 2 and 3: Japan makes no further attacks on American forces. America makes no attacks on Japanese forces.

It seems that there are at least three questions being argued here. One is whether a Declaration of War has any legal consequences. A second is whether there can be a "war" -- normal English language definition -- without a legal "Declaration of War"; I don't think anyone disagrees with you that the answer to this is "yes". The third question -- which I'm just sticking with because, on my reading, you've staked out such a weird position -- is whether two countries that are not fighting and do not intend to (continue to) fight each other can be said to be "at war".
6.15.2007 12:14am
Mark Bahner (www):

In your hypo, the U.S. was at war with Japan when they attacked us.


OK, so you say. You're wrong, but I'll demonstrate that with another hypothetical later.


We stopped being at war when both sides decided they no longer wanted to be at war. Under your scenario, that would presumably be when the Soviets conquer Japan.


I think you need to read my hypothetical more carefully, if you think that the earliest time "both sides no longer wanted to be at war" was when the Soviets conquered Japan.

I very clearly stated in my hypothetical that a majority of Congress voted NOT to declare war on Japan immediately after FDR's request of a declaration of war in his "imfamy" speech. And I also very clearly stated in my hypothetical that Japan, having destroyed the entire Pacific Fleet on December 7, 1941, did not ever engage in military action against the U.S., but instead consolidated their positions in China and Korea.

Would you like to amend your answer after reading the hypothetical more carefully?
6.15.2007 1:06am
Mark Bahner (www):
A postscript to my previous comments, in case there is any confusion. In my comments of a few minutes ago, when I'm referring to "my hypothetical," I'm referring to the hypothetical I gave at 5:20 pm on June 14th on this posting thread ("What should happen to Al Qaeda members in the U.S.?).
6.15.2007 1:10am
Mark Bahner (www):
Hi DonBoy,

I think you and I are in complete agreement. But I'd rather hold off any discussion of your "three questions" until I'm sure David Nieporent has completely read and understood the hypothetical I gave at 5:20 PM on June 14th, and has provided his "final answers" (as Regis Philbin would say ;-)) to my two questions.

That is, in the hypothetical of 5:20 PM on June 14th:

1) When (if ever) was the U.S. "at war" with Japan?

2) When--if ever--did the U.S. war with Japan end?

Mark
6.15.2007 1:19am
David M. Nieporent (www):
DonBoy, perhaps I've lost track of whatever silly hypothetical he was making -- one in which attack by a foreign country leads the U.S. to shrug and say oh well is so far outside reality as to be not really worth discussing.

It seems that there are at least three questions being argued here. One is whether a Declaration of War has any legal consequences. A second is whether there can be a "war" -- normal English language definition -- without a legal "Declaration of War"; I don't think anyone disagrees with you that the answer to this is "yes". The third question -- which I'm just sticking with because, on my reading, you've staked out such a weird position -- is whether two countries that are not fighting and do not intend to (continue to) fight each other can be said to be "at war".
I don't have any quarrel with your statements, except to the extent you say that "I don't think anyone disagrees with" me on the second question. No rational person disagrees, but Mark does in fact think that there's no war without a Declaration of War.

You're right, I guess -- if neither side is fighting nor has any intent to fight, then there's not much in the way of war. But the important point for this discussion is that it's the fighting/intent to fight -- not any Congressional declaration -- that defines whether a war exists.
6.15.2007 6:00am
Mark Bahner (www):

You're right, I guess -- if neither side is fighting nor has any intent to fight, then there's not much in the way of war.


Brilliant dodge of the question(s)! Now I know you're a good lawyer. Why don't you answer the questions? Are they not simple enough for you?

That is, in the hypothetical of 5:20 PM on June 14th:

1) When (if ever) was the U.S. "at war" with Japan?

2) When--if ever--did the U.S. war with Japan end?
6.15.2007 8:50am
DonBoy (mail) (www):
David:

DonBoy, perhaps I've lost track of whatever silly hypothetical he was making -- one in which attack by a foreign country leads the U.S. to shrug and say oh well is so far outside reality as to be not really worth discussing.

Nevertheless, that's what we were talking about.

I don't have any quarrel with your statements, except to the extent you say that "I don't think anyone disagrees with" me on the second question. No rational person disagrees, but Mark does in fact think that there's no war without a Declaration of War.

I should let Mark speak for himself on that, but I didn't take him to be arguing that at all. This is, after all, a lengthy discussion of legalisms.
6.15.2007 4:08pm
Trent Telenko:
>and it certainly did NOT have a blast radius larger than the
>launcher range if fired properly.

There were two versions of the Davey Crockett launcher, a 120mm and 155mm recoilless rifle. The W84 nuke hung out the end of the two recoilless rifles like an PG-7 Grenade of the RPG anti-tank rocket.

The two launchers had a problem that the W84 shared the same problem as a PG-7 grenade. They weathervaned into the wind.

Since the launchers threw the bombs up in a mortar like trajectory, in high wind conditions the warhead had a circular error probability amounting to 50% of the range of the launcher.

At maximum yield it was possible for the launch crew to kill itself with its own weapon if wind conditions aloft were just right.

There was a similar issue in the late 1980's with the MLRS rocket firing SADARM munitions. At minumum rocket range, in a 40 kt head wind, the SADARM munitions would have blown back over the launch site and killed the launcher.
6.15.2007 5:55pm
Mark Bahner (www):
Hi,

David Nieporent writes, "I don't have any quarrel with your statements, except to the extent you say that "I don't think anyone disagrees with" me on the second question. No rational person disagrees, but Mark does in fact think that there's no war without a Declaration of War."

DonBoy responds, "I should let Mark speak for himself on that, but I didn't take him to be arguing that at all. This is, after all, a lengthy discussion of legalisms."

I don't have time to comment in depth, but at this point, I'm simply (desperately!) trying to get simple answers to my simple questions:


That is, in the hypothetical of 5:20 PM on June 14th:

1) When (if ever) was the U.S. "at war" with Japan?

2) When--if ever--did the U.S. war with Japan end?


If it will help move the discussion forward, I'll give my own answer(s):

1) In my hypothetical of 5:20 PM on June 14th, the U.S. was never at war with Japan, because the Congress turned down FDR's request to declare war on Japan.

2) Question #2 about the time the war ended in the hypothetical is irrelevant, because the war never started. (See answer to Question #1.)

Do we all agree? Or does someone disagree?
6.15.2007 8:14pm