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

  In the comment thread in a recent post, a number of commenters took the VC's blogggers to task for not blogging about the bill and its predecessors. Here's a taste:
(1) Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." . . . . Don't you lawyers have anything at all to say about this? Any opinions at all?

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

(3) I agree with Frances, Anderson, and Commenterlein. The lack of comment is amazing. Yes, bloggers can post on whatever they like, but for a blog concerned with constitutional issues and individual liberties to remain essentially silent on these topics is quite remarkable.

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

(5) Thank you to Frances for making explicit what has bugged me a lot. One view is that VC contributors are faced with an unpleasant bit of cognitive dissonance: how to react when self-styled conservatives fall over themselves to pass a statute authorizing torture, indefinite detention and the aggrandizement of the executive. . . . . But I think that if conservative intellectuals are to have credibility, indeed if conservative ideas are to have any credibility outside of true believers, intellectuals like VC needs to address these bills.

(6) Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.
  I can't speak for anyone else, but here are a few thoughts of my own in response.

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

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

Related Posts (on one page):

  1. Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
  2. The Military Commissions Bill, and A Note on Blogging Topics:
Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:

Orin Kerr's post and the comments to it raise the question of why we haven't blogged about the detainee bill and the debate over torture. I can't speak for anyone else, but in my case, I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

For these reasons, I try to limit my posts on political issues to the following three categories:

1. Issues on which I am an expert (primarily political participation, federalism, and property rights). This is where I have the greatest chance of making an original contribution.

2. Issues on which I'm not officially an expert, but have a lot of knowledge because I follow them closely (i.e. - far more closely than merely reading occasional articles about them in the media or online).

3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored.

The issues of torture and detention do not fall into any of these three categories, so I don't blog about them.

The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue.

UPDATE: The one relevant point that I think has been neglected in the debate is the impact on our enemies' incentive to surrender. If enemy fighters believe they will be tortured if captured, they have a stronger incentive to fight to the death rather than give up; none of the articles I've read on the subject considers this aspect of the matter, though perhaps someone has written a piece on it that I have missed. This consideration counsels against the use of torture, or at least in favor of strictly limiting that use. But I don't think it's enough to resolve the debate by itself.

Related Posts (on one page):

  1. Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
  2. The Military Commissions Bill, and A Note on Blogging Topics: