Balkinization  

Thursday, October 19, 2006

John Yoo on Court-Stripping

Marty Lederman

In today's Wall Street Journal [thanks to Howard Bashman for the link], John Yoo correctly emphasizes that the primary impact of the Military Commissions Act is, as Jack has explained, to attempt to eliminate any judicial checks on the Executive's conduct of the conflict against Al Qaeda:

Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. . . . Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.
Good to see that John Yoo and Jack Balkin are, for once, on the same page!

Eliminating the checks and balances of judicial oversight has been the primary goal of the Administration all along, as John's own memos and other writings quite forthrightly reveal. In his new book, John describes how in the weeks after September 11th, an interagency task force of lawyers was convened to study the wide array of legal issues related to the detention and trial of suspected Al Qaeda personnel. Presumably there were many difficult questions that the task force debated. But there was, as John recounts, "one thing we all agreed on" -- namely, "that any detention facility should be located outside the United States."

Why was this the one point of absolute consensus within the Administration? Isn't that odd -- that the easy point of unanimous agreement was to keep our detention operations outside of our own nation, above all else? It's not as if these captured persons were all detained where they were found. No -- they were shipped halfway around the world; but instead of, say, detaining them at a military brig in South Carolina, which would have been the logical plan, the planes and ships made a sharp left turn at the last moment so that these folks would disembark in Cuba, which is less than 100 miles from the Florida coast.

The reason, of course, for such a resolute determination to keep the detainees offshore, was (as John quite candidly writes) because the lawyers assumed GTMO was a law-free zone -- a location impervious to any judicial oversight. And of course, in light of what we were doing to these detainees, there was damn good reason to keep our operations out the plain sight of any courts, lest they have the temerity to insist that the Administration follow the law.

The Supreme Court rejected this gambit in the Rasul case, and John is correct that the MCA attempts, in effect, to reverse Rasul and to render the President's conduct nonreviewable.

John unabashedly celebrates this move. But he doesn't give much of a justification for it, except that he does not like the idea of the courts reviewing the legality of the Executive's actions in wartime. There is a certain irony in this, given the source: This is, after all, the lawyer who has most aggressively promoted the view that notwithstanding all of its war-related article I powers, Congress is entirely disabled from regulating the Executive's wartime decisions. And yet he not only thinks that Congress can strip the courts of their constitutional functions in wartime -- he positively revels in it.

Presumably, John would agree that if these detainees were being held a few hundred miles away, in Florida or in South Carolina, they not only would have had traditional habeas rights, but also would enjoy substantive constitutional rights of due process with respect to their treatment in detention and their ability to challenge their detention. OK, but then doesn't that cast a cold light on his gleeful defense of the MCA? Is there any good, persuasive reason why those constitutional rights should suddenly disappear -- and that we should encourage Congress to eliminate the cognate statutory rights -- simply because we chose to turn left at Florida rather than to turn right?

Of course there isn't. The reason John and his colleagues are so spooked by the prospect of judicial review is that they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.

For what it's worth, although John gets the big picture of the MCA right, there are several inaccurate statements in John's Op/Ed, including these:

1. "The writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis)."

Wrong. As I've previously written:
[The habeas-stripping provision of the MCA] would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings(and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").

If [the MCA] had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita. Thus, this habeas-stripping provision would be a much more dramatic repudiation of traditional, longstanding habeas rights than has been commonly acknowledged.

2. "[T]he traditional understanding [pre-Hamdan was] that Geneva does not cover terrorists, who are not signatories nor 'combatants' in an internal civil war under Article 3."

Also mistaken. As Justice Stevens rightly explained, the much more common "understanding" was that such detainees receive the baseline, minimum rights established by Common Article 3, which is all that the Hamdan Court held. See my discussion of Myths Nos. 4, 5 and 8, here.

3. "Most of the press and the professional punditry missed the big story," namely, that the MCA attempts to cut off judicial review.

This is, of course, absurd, as any rudimentary search of the blogosphere, the New York Times, the Washington Post, etc., would readily demonstrate.

Comments:

"Most of the press and the professional punditry missed the big story," namely, that the MCA attempts to cut off judicial review.

Odious as it is to find Yoo right about anything (you know the feeling, obviously), he's not far wrong. The NYT and WaPo news pages were slow to pick up on this and not terribly good at getting it out when they did. I was complaining about the exclusive focus on the torture issues on Sept. 18. After the "moderates" caved on torture, the media moved on to noticing the court-stripping problems, a little bit.

I think it's safe to say that the general public didn't pick up on court-stripping as an issue, to say nothing of its implied rubber-stamp for the same administration that most of that general public mistrusts.
 

As I recall, there never was any serious controversy within congressional Republican ranks over court-stripping. Sen. Graham, one of the three holdouts negotiating with the administration over other issues, always was a leader in the move to strip jurisdiction. He tried, and failed, to accomplish the same thing in the 2005 Detainee Treatment Act (and its creatively constructed legislative "history" that would have prevented the Hamdan case from being decided on the merits at all).

Specter and a pitiful handful of Republicans joined Democrats objecting to the habeas-stripping provisions, and the 51-48 vote rejecting his amendment was the closest vote in the consideration of the bill.

If that vote were to occur during the 110th Congress, the result might be different. But no one expects the issue to be reopened. So in that sense, Yoo's gloating may prove well founded.
 

Professor Balkin:

[T]here are several inaccurate statements in John's Op/Ed, including these:

1. "The writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis)."

Wrong. As I've previously written: [The habeas-stripping provision of the MCA] would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus.


I think that depends on whether you and Professor Yoo are referring to the same grounds for habeas review.

If Professor Yoo was arguing that alien enemy combatants have never been allowed in Britain or the US to use the writ of habeas corpus to challenge the determination by the military that the detainees were combatants or to challenge their detention by the military during for the duration of the conflict , then he would be correct.

If Professor Yoo is making a blanket statement that alien enemy combatants never had any access to the courts, then you have a point.

The Quirin and Yamashita courts expressly limited themselves to determinations of whether the military commissions being challenged were lawful under statute and Constitution. The Supreme Court reasoned that Congress created jurisdiction for the judiciary to consider this issue pursuant to a petition for a writ of habeas when it enacted legislation allowing the defendant to make a defense without restriction:

Finally, we held in Ex parte Quirin, supra, 317 U.S. 24, 25 , 63 S.Ct. 9, 10, as we hold now, that Congress by sanctioning trials of enemy aliens by military commission for offenses against the law of war had recognized the right of the accused to make a defense. Cf. Ex parte Kawato, 317 U.S. 69 , 63 S.Ct. 115. It has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus. Yamashita, 327 U.S. at 8.

More importantly for consideration of judicial limitations enacted in the MCA, such reasoning implies that Congress may take away what it has given by placing statutory limits on judicial review of military commissions. Indeed, the Yamashita court recognized that the congressionally enacted Articles of War denied it jurisdiction to review whether the military commission committed errors in the trial of the petitioner. Yamashita, 327 U.S. at 8.

If [the MCA] had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita.

I would disagree for the most part. I don't see much practical difference between the system followed under Quirin and Yamashita and that available now apart from the procedural vehicle for review.

The petitions for writs of habeas corpus reviewed by the Quirin and Yamashita were considered after the military commission trials were finished.

In the case of the MCA, alien enemy combatants are denied habeas corpus but are permitted judicial review of their cases after the military commission trials are complete.

This would appear to me to be a distinction without much of a practical difference.

2. "[T]he traditional understanding [pre-Hamdan was] that Geneva does not cover terrorists, who are not signatories nor 'combatants' in an internal civil war under Article 3."

Also mistaken. As Justice Stevens rightly explained, the much more common "understanding" was that such detainees receive the baseline, minimum rights established by Common Article 3, which is all that the Hamdan Court held.


This is simply a clash of opinions between Professor Yoo and Justice Stevens on an issue which had not been decided previously. Although Yoo would appear to have the better founded argument based on the actual text of the Geneva Conventions, Yoo lacks Justice Stevens' power to rewrite Article 3 through his "interpretation." However, it appears that the Congress will have the final word on the matter by enacting the MCA under its plenary Article I power to set rules for Captures.
 

I wonder why Bart thinks that "Justice Stevens," not the Supreme Court of the United States, is responsible for Hamdan?
 

Anderson said...

I wonder why Bart thinks that "Justice Stevens," not the Supreme Court of the United States, is responsible for Hamdan?

Justice Stevens wrote the opinion for the Court, except for Section VI-D-iv in which he provided much of his own interpretation of what Common Article 3 required.
 

I'm a little tired of you guys talking about Yoo's positions as if they were rooted in constitutional, rather than partisan, concerns. He railed against Clinton's "outrages" during the Balkan crises, and he will switch sides again when/if another Democrat exercises the sorts of authority he's championing today.
 

Matt: I'm a little tired of you guys talking about Yoo's positions as if they were rooted in constitutional, rather than partisan, concerns.

Amen. So too for Scalia and a host of others.
 

Yoo's motives are obviously suspect, but one can be both partisan and right. So it's excellent that Balkin, Lederman, et al. take the trouble to refute him.

Otherwise, we get wingnuts crowing that "liberals hate John Yoo but they can't prove him wrong." Okay, well, we get that regardless ...
 

Anderson: So it's excellent that Balkin, Lederman, et al. take the trouble to refute him.

Another "Amen." It also helps students and political greenhorns (me) prepare for dialog with partisan posers. But while there are blogs aplenty of all political stripe, I'm particularly pleased with the tone of Balkinization. Our hosts set the standard for which I aim as I continue my education and activism.

Okay, well, we get that regardless ...
Ain't it the truth.
 

Oddly, I recall on a previous thread an argument about creation of "law free zones." I note that this issue has been ignored by administration apologists this time around. A pity we didn't have Yoo's words to support the claim on the previous iteration. This really is one of the more damning items in Professor Lederman's post, that there was consensus on needing to have detentions off of U.S. soil---as the first (and now failed) defense against judicial review of the administration's acts in this fallacious "war" on "terror".
 

Frankly, I can't see the basis for the left's fixation with John Yoo.

Yoo is simply one commentator among many who happened to draft a legal memo for DOJ when the Executive was trying to figure out how to handle al Qaeda and other enemy prisoners.

As with most legal commentators, I accept some, but not all, of what Yoo argues if it is supported by the law, which I can read for myself.

If you don't accept his arguments, move on and make your own, but support them with the law.

Demonizing Yoo only gives him more influence than he merits among your opponents.
 

I fully support substantive opposition to those we feel simply are being hypocritical. I personally find responding to such people a useful way to freshen up my argumentative skills. Also, often respectful replies that accept their bona fides leads to more respect for you.

I'd add sometimes we are wrong, are inconsistent to some degrees ourselves, or not likely to convince outside the "choir" on simple "you can't take them seriously" grounds. Even with plenty of evidence.

It is clear to me that Yoo is simply put a supporter of a very strong executive. Many here would add "conservative" but the first part is definitely clear. Thus, he finds it strange that people are so dismissive of his views on how the President has some rather broad war making power.

Also, let's compare this to his view on Congress. His essay in a collection Prof. Levinson helped put together on constitutional stupidities/tragedies continues to seem rather telling. Yoo finds McCulloch v. MD quite tragic since it promoted a broad view of congressional power.

But, his rather broad view on executive power -- for an originalist (not even going into policy grounds) surely if anything much more ahistorical -- seems to him a good thing on some policy level.

His opposition to Clinton suggests the "ox being gored" problem. This is why Glenn Greenwald's efforts to compare and contrast are so useful.
 

Joe:

Also, let's compare this to his view on Congress. His essay in a collection Prof. Levinson helped put together on constitutional stupidities/tragedies continues to seem rather telling. Yoo finds McCulloch v. MD quite tragic since it promoted a broad view of congressional power.

But, his rather broad view on executive power -- for an originalist (not even going into policy grounds) surely if anything much more ahistorical -- seems to him a good thing on some policy level.


Absolutely right! Anyone who reads the Constitution and documents of the time with anything approaching an open mind will see that the Founders saw federal power as originating in Congress. Many people almost treated federal power and Congressional power as synonymous. Of course, the Constitution also provides for an independent executive because it was assumed at the time that liberty was threatened if either the legislature usurped executive power or the executive usurped legislative power.

Well, several things have changed since then. Federal power and Congressional power have expanded spectacularly. The size and power of the executive relative to the other branches of government has expanded beyond what anyone in the 18th century could have foreseen.

And the separation of powers theories has been (partially) disproven. In many parliamentary governments today, the legislature has usurped all executive power and liberty is none the worse for it. I know of no country in which the executive has seized the legislative power and liberty has survived. John Yoo, and others who would scale back Congressional power to some past golden age, yet leave the executive untouched, are effectively proposing just that.
 

"The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality."

Professor Lederman, you can't possibly mean that literally. One needn't be an out-and-out legal realist to understand that litigation and adjudication involved a variety of practical considerations. Litigation imposes real costs, nonfinancial and financial, which may be sufficiently high to make litigation avoidance a desireable option, quite apart from the guilty conscience you allege.

Furthermore, if you truly believed that no party with utter confidence that the courts will find the party's conduct to be legal, then you would agree that the Supreme Court does not need to allow for petitions for rehearing, and that the Court should never DIG a petition, or that the Court should never reverse course on previous precedent.

Quite frankly, the Court is not infallible. Sometimes the Court gets issues wrong. Why shouldn't the Administration guard against that possibility?
 

I had an incomplete thought in there.

My second-last paragraph should have read:

Furthermore, if you truly believed that no party with utter confidence that the courts will find the party's conduct to be legal would want to avoid litigation, then you would agree that the Supreme Court does not need to allow for petitions for rehearing, and that the Court should never DIG a petition, or that the Court should never reverse course on previous precedent.
 

Finally, I must admit my surprise by your invocation of Yamashita as grounds for suggesting that a prisoner in an insular possession has a right to the writ of habeas corpus.

Setting aside the fact that our sovereignty over the Philippines in 1941 is quite different from our nonsovereignty over Guantanamo Bay, Cuba, today, the fact is that in 1941 Congress expressly extended habeas relief to prisoners in the Philippines. That statute was repealed in 1948.

Justice Jackson explained all of that in Eisentrager!

How would the MCA "overrule" Yamashita, when the latter nowehere suggested that Congress could not control the extension of habeas to military prisoners?
 

As with Yamashita, and Yoo, context matters. To comment upon the legal scholar first, in some ways I see professor Yoo as the Athenian in Aristotle's Poetics seeking catharsis. To address the abusive military leader, Yamashita was guaranteed as the defeated leader to earn the wrath of commissions however configured. In some of the early anti-MCA argumentation, similarly, I heard invocations of Nuremberg trials; there is little the moderate center can do save let Nuremberg pass. War crimes trials obey the rule of carthasis as much as the other more genteel rules of society; usually the persons on trial are involved in visible and unfair actions even though they were leaders. A few detainees at Gitmo are in that category; some putatively are not. It seems to me MCA gives a few seams for entering courts, but they are untested yet, or tests are just beginning.
Recalling the nomination hearings for both Roberts and Alito, I think the administration will do all in its power to keep those new justices from an opportunity to adjudicate habeas matters, as they are strong supporters of nobles who gained the rights King J relinquished a long time ago.
Early in Gtmo's establishment as a detainee site there was a court case, which I thought would address more strongly, as the commenter above has, Gitmo's status as ad hoc occupied territory.
One of the interesting ways ML phrases the turning point decision whether to the brig onshore or the 'facility' offshore, is important, I think, as it expresses a significant new element in geographic location which is written into UCMJ and other rulebooks; namely, transportation is so much easier now than in times past. It is much more feasible now to transport the detainees from the scene where found to some sequestered place for interrogation and imprisonment and further processing. This ease of transport, I think, weakens the imperative for MCs vs other more standard tribunals with better rules of evidence. UCMJ is very explicit about some sense of reasonableness in this regard even expressing it as it does in experiential military terms written by the service which understands armed conflict as its primary business protecting the nation.
 

I also posted this over at Volokh.

Yoo said the following:

"The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended 'in Cases of Rebellion or Invasion' when 'the public Safety may require it.'"

Congress may very well have the power to curtail the Court's appellate jurisdiction (see below), but the habeas provision constitutes an obvious limitation on that power. If not, then the habeas provision is (potentially) a nullity. Even McCardle doesn't go as far as the current statute, since that involved only the elimination of the Court's appellate jurisdiction -- the District Courts could and did hear the writ petition. A statute which purports to eliminate all jurisdiction to hear habeas cases seems clearly to violate the habeas clause (unless the conditions precedent are met, which they indisputably are not).

Frankly, I don't understand the accepted view that Congress can deprive the Court of appellate jurisdiction. I know that the courts have always construed Art. III, Sec. 2, cl. 2 that way. I don't read it like that. To me, it simply allows Congress to modify whether that appellate jurisdiction consists of law or fact. In other words, we should read it as if the Court "shall" have appellate jurisdiction, but Congress can regulate whether the Court reviews the facts or simply the law.

This reading eliminates what otherwise appears to be a conflict with the language of Art. III, Sec. 1 vesting all the judicial power in the Court and the similarly inconsistent provision of Art. III, Sec. 2 stating that such power shall extend to all cases in law and equity arising under, etc.
 

Quite frankly, the Court is not infallible. Sometimes the Court gets issues wrong. Why shouldn't the Administration guard against that possibility?

Your argument is that the Administration ought to oppose habeas review because it might lose? That's your argument? Seriously?
 

Adam,

Guantanamo Bay is under US sovereignty for all practicial purposes until such time as the United States hauls down the flag and returns the land to Cuban control.

To suggest otherwise is preposterous sophisty -- in short, a typical neo-fascist FRAUD.

Why should it even matter?

And why should you be so keen to treat others unfairly in violation of the law??
 

I wanted to write here titles of a couple documents I am re-reading: The first I wish was footnoted, as Katyal on page 80 of the March 2006 rebuttal opens discussing Quirin and 'Bereford'.

The other also is a substantial document by Green in 84 Wash L Rev a thoughtful review of Rutledge's work, applied in revised detail to the Justice's work on executive detention from Yamashita forward in time to Hamdan http://ssrn.com/abstract=905119 interestingly Green first posted it in May 2006 and updated it September 22, 2006; see also this view. Rutledge dissented in Yamashita; the other dissent (Murphy) is interesting, but much more truncated; 327 U.S. 1 (1946).
 

This comment has been removed by a blog administrator.
 

"To comment upon the legal scholar first, in some ways I see professor Yoo as the Athenian in Aristotle's Poetics seeking catharsis."

Huh? Sure you don't mean the Athenians in the Melian Dialogue by Thucydides?

since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must. * * *

Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can. And it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do.

Legal realism, indeed.
 

As I noted in my post on Monday night, Carl Schmitt's program for the expansion of Executive power following the promulgation of the Enabling Act had a very clear first step: silencing the autonomous judiciary. He was convinced that they presented the sole serious challenge to the new notion of Executive authority, and they had to be dealt with quickly through a variety of techniques. Once more, John Yoo's Journal piece travels down Carl Schmitt's well charted path. And it reminds of several other Schmittian elements in the process, such as the plan to assure that the detention facilities created in the wake of the act were beyond the reach of courts and lawyers. The parallels are amazing. And chilling.
 

"I wanted to write here titles of a couple documents I am re-reading: The first I wish was footnoted, as Katyal on page 80 of the March 2006 rebuttal opens discussing Quirin and 'Bereford'."

John,

"Bereford" is a transcription error -- the citation is Ex parte Burford, 7 U.S. (3 Cranch) 448 (1806); see, e.g.:

Hamdan Surreply

Center for Nat'l Security Studies Amicus
 

Re. Robert Link's debunking Marty's claim that there was, according to Robert, "consensus on needing to have detentions off of U.S. soil---as the first (and now failed) defense against judicial review," I wrote in an article posted 6/29/04, the following information:

While many share this view, few Americans know that the very reason the administration chose Guantanamo was in order to avoid a so-called habeas corpus challenge. This is not speculation. It was revealed in a 2002 essay by a student at the National War College who claimed he was privy to both classified and unclassified material. According to the student, Col. Daniel F. McCallum, Guantanamo was chosen, at least in part, because it presented a "minimal litigation risk." McCallum states baldly:

The litigation risk faced by DOJ was access to federal courts for the purpose of filing a writ of habeas corpus. Habeas corpus requires judicial review of the detention of a person to determine if the detention is lawful. An important factor in assessing this risk is that this only applies to citizens and foreign nationals if they are held within the United States.

For Guantanamo, "since the property belong to Cuba, DOJ assessed the litigation risk as minimal," and "[c]onsidering the strained foreign relations we have with Cuba, [the Department of State] assessed the minimal negative impact acceptable" writes McCallum.


http://www.counterpunch.org/bergen06302004.html
 

Scott Horton: The parallels [between Yoo and Scmittian thought] are amazing. And chilling.

Scott, I'm beholden to folks like you and the other names on the masthead for help in clarifying my thoughts and expressing "our" positions well. It's in that context that I want to ask: How can we keep from having observations such as yours, above, dismissively countered with statements like, "Just because the Nazi's did it doesn't make it wrong; that's bad logic! I suppose you want to throw out Algebra and Physics too?" Yoo and Schmidt argue for a stronger executive and weaker judiciary. We know how that worked out in Schmidt's case, but it still smacks of post hoc fallacy unless I can say *how* the policy invariably leads, or at least reasonably tends toward, the horrific abuses we saw in Germany. The best I've been able to do so far is try to personalize things, to try to lead folks to seeing how this could be used against them or their loved ones if ever there came to power an executive who deemed them an enemy (rather than the current state for most supporters of Yooish thought in which the "strong" executive "just happens" to be the supporters' party head.)

Too often I end up feeling like the whole mess comes from the current party truly believing it can never lose power---or turn to evil. Makes one wonder if any of them passed a history course.
 

Jennifer: Robert Link's debunking Marty's...

To quote the great Inigo Montoya, "I don't think that means what you think it means." ;) I was trying to steer the comments back to this issue because I thought it deserved more time than we were giving. In no way was I disagreeing with Professor Lederman; I was saying that the choice of location for detention arguably best proves the adminstration's intentional and willful malfeasance on such matters. Nor do I suspect there will ever be a time when I am in a position to "debunk" anything Professor Lederman writes, since the requirement for such an event would be him writing some "bunk" for me to "de-", and I just don't see that happening.

Peace, and thanks for the counterpunch link.
 

I am not a legal scholar and it is often hard for me to be able to follow the discussions about what is happening to the Republic.

I have these questions, though, that I list just to see if anyone else has the same or can say whether these are off-base.

1. What is the right role of _Military_ Justice in these matters?

This question came to my mind in the context of Executive authority. Senator L. Graham, on the Senate floor, said that he believes that, in times of war, the Executive ought to have deference in determining who is an enemy combatant, rather than a judge. The history of this principle, as I understood his explanation, is so that the military can shape the battlefield to its advantage.

My question, however, is what is “the battlefield” in international terrorism, except the streets and houses of non-US citizens? Do we really want the military ‘shaping’ this part of our international relations, _in general_?

We fought international terrorism for a long while before 9-11 (and it seems other nations, like Britain have too). What has changed since then? We have mobilized the Army (for Afghanistan). Well, is that just a circumstance or do we really need new legal principles, because of that event (an event which we do not expect to be frequently recurring, I hope)?

Last, why is the military the right choice? I can appreciate the difficulties of offering up criminal trials, but what is the argument against having a civilian tribunal set-up, rather than a military one? Is there any such precedent or is it just thought to be a terribly bad one?

Lindsey Graham was asking, “Do you believe 9-11 was an act of war or a crime?” (he even asked of Justice Alito, too).

I think most sensitive, non-lawyer folks believe that terrorists acts are “acts of war (or moral depravity) that we intuitively feel should be calmly and steadfastly prosecuted as crimes.” Can the legal system be made to accommodate that tension?

2. What is a successful trial for international terrorists?

This question came up in watching Mary Jo White, et. al. on C-span yesterday.

How can we possibly NOT think of the 'effectiveness' of a trial as an extension of our counterterrorism efforts (although that hardly seemed a universal sentiment on the panel)? Clearly, al-qa’ida types believe that their trial is just the ‘judicial phase’ of their jihad, their public platform to show the political part of their political-violence.

It seems to me that ‘success’ goes beyond proving ‘guilt’ in a conspiracy, for example. We might define the public interest in paying for a trial, for Justice, to publicly re-enforce a broad-reaching counter-terror strategy, viz. that political violence is the wrong choice for social change, that individual pain or suffering does not justify all things to oneself, that terrorist acts are not moral championship but moral abdication, etc.

3. Should we look to specific cases to make good judgments about how to handle them or do we need a complete “framework”?

How much are decisions about what to do being driven by the number of new cases, how much by the similarity of cases, and how much by the uniqueness of cases?

Are we making choices about how to structure due process because we do not have “good cases” or “poor cases” against some people who we just do not want to let go?

Are we ready, as a public, to actually let someone go, because a confession was the result of CIA …er .. “righteousness”, rather than regress the evidentiary rules so much that even hearsay is ‘sufficient’?

4. How much do we need harmonize international approaches to prosecuting terrorists?

How much can the World’s security net be set-up so that there are some minimum standards of evidence and perception that serving Justice to terrorists is not something that is so wholly dependent on jurisdiction?

Rather than take prosecutorial differences among nations as something that ‘must be dealt with at trial’, how much do we need to deal with it ex ante at the diplomatic and security arrangement level?

5. How much and how should ‘fault tolerance’ be included in the design of legal choices?

Are their unique implications for counterterrorism of Type-I and Type-II judicial errors and prosecution ‘failure’?
 

Robert, thanks for the clarification. It's well-taken.

I have a question to all here about Yoo's statement that "Congress's power is even greater when it is correcting the justices' errors." (4th para. from bottom of article) My question is, where does this idea come from?
 

Amicus: Can the legal system be made to accommodate that tension?

Sorry to cherry-pick your lengthy post, but I think this one question and my answer are the best "bang for our buck."

There isn't really any tension in the legal system on these matters; it's the political arena that's tense. There is no legitimizing the "war" concept with regards to the attacks of September 11, 2001. There was no nation with which we can have an armed struggle---and that is the only understanding of the word war that can be legitimately supported by any system of Constitutional interpretation. Legally there is no question: the terrorists involved in the nine-one-one attacks are international criminals and should be pursued accordingly.

Ah, but politically those words are quick poison---even if we had the most enlightened of media and elected representatives (which we very much do not have.) The average person hasn't the depth to make the distinction, and PNAC has had a field day with this failing in our electorate, and they have had the willing support of an "embedded" media.

To tie the matters together, the political opportunism of an administration with (putting this gently) strong ties to the intelligence community and PNAC has lead to passage of quite a bit of bogus legislation, starting with AUMF on September 18, 2001, which gave legislative embodiment to the fallacious "war" on "terror." The tension in the legal system is that of a fortress, Law, under siege by barbarians, the neo-cons. Will Law survive? Frankly I'm glad I'm not a betting man because I wouldn't know where to put my money; PNAC might just carry the day, and carry the nation down that old well intended road with it.
 

Robert Link said...

There is no legitimizing the "war" concept with regards to the attacks of September 11, 2001. There was no nation with which we can have an armed struggle---and that is the only understanding of the word war that can be legitimately supported by any system of Constitutional interpretation.

Nowhere in the Constitution is there a restriction that war may only be declared against nation states. In a case very similar to our 2001 AUMF against al Qaeda and its allies, Congress declared formal hostilities against the Barbary Pirates on March 2, 1815.

Indeed, the US rarely declares formal war against non nation states like the Indians, the Barbary Pirates and the Moro rebels in the Philippines. However, the captures by the military in these conflicts were rarely treated as citizen criminal defendants. Instead, military rules were used to determine their fate.
 

Which shall it be, Bart, a Constitution of Original Meanings, or a Living Constitution of Interpretations? Your preference seems to shift, unsurprisingly, along partisan lines, as only that latter could embrace a "war" on poverty or a "war" on terror. Meanwhile, what of my earlier question: So when the Demoncrats (sic) get the White House the President can lock you up, determine you are an alien or otherwise subject to MCA treatment on any or no criteria, and neither you nor your partisans can do a damned thing about it, what then?

The answer, of course, will be more evasion and question begging; "it can't happen here," "no one would ever do such a thing," and on into the dark night of denial.


I'd just as soon not be addressed by you at all, but if you find you simply must answer my posts then how about starting with this one? "What then?" Your references to historical inconsistencies in Constitutional application aren't really to the point, and your attempts at debate class exploitation of our crimes of genocide against the natives of this continent is nothing short of repugnant.
 

robert, thanks for your reply (and no problem with cherry picking - it's a long list!).

I continue to watch what public discussions I can that are accessible to non-specialists.

My assessment is that, as a group, as a community, we have yet to come to a National Consensus or even two, interanlly consistent polar-consensus about what and how terror strategies really work.

Without a conceptual understanding of how political violence and its practitioners seeek to work, one cannot design appropriate counterterror (or counter-insurgency) policies.

I would argue that the criminal law purports to understand crime, at least we recognize different severities and so-forth. It also purports to understand remedies, implicitly.

It would seem that, until and unless one has an overall view of 'terrorism' and what to do about it, that trying to steer the development of law or of policy is a rudderless endeavor.

Hereis an article by the noted historian, Sir Michal Howard, on the mis-use of the word "war", in relationship to terrorism.

Here are some more words of his, dating all the way back to 2001:

quote:
Wednesday October 31, 2001

"Even more disastrous would be its extension... through other rogue states, beginning with Iraq, to eradicate terrorism for good and all," he said. "I can think of no policy more likely, not only to indefinitely prolong the war, but to ensure that we can never win it."

Phillip Bobbitt has argued that al'qa'ida is different (a "virtual state"), but I don't find that at all convincing. All that is different, in my mind, is that they have internet communications (ironically supplied by the very 'civilizations' that they deplore); otherwise, it would seem that all such political movements are constituted as a 'virtual' nation, one of ideas, that is.

Based on these perspectives, it would be reasonable to conclude that formalized 'war-footing' does not make sense, and therefore does not/would not make good law.
 

Robert Link said...

Which shall it be, Bart, a Constitution of Original Meanings, or a Living Constitution of Interpretations?

For those of you who are textualists as I am, the term war has had the same commonly understood meaning in and out of our Constitution for a couple millennia now. When our soldiers are in combat with an enemy of our nation, we are in fact at war no matter what resolutions Congress did or did not enact. You might want to quibble about whether we are authorized to be at war without a declaration, but the fact of war is indisputable. Enemy combatant detainees during a war are Captures under the Constitution, not citizen criminal suspects.

For those of you who use original intent, our country before and after the enactment of the Constitution always understood that enemy combatant detainees during a war are Captures. We never treated them as common criminals. Indeed, such treatment would have violates the laws of war at that time.
 

Mark Field: Do you realize that your view seems to imply that the SCOTUS has jurisdiction to hear an appeal from any state court case involving minimal diversity, without regard to amounts in controversy? Because that is the natural outgrowth of your position. The constitutional diversity jurisdiction extends to such suits, but is contracted by statute. If Congress has no power over the Court's appellate jurisdiction except via reducing the ability to conduct factual review, then how can it purport to prevent the Court from overturning a state supreme court judgment involving citizens of differing states? Not that I think such a result is that likely, but do you think the Court has this power, despite the contrary jurisdictional statute? Likewise, are the finality statutes void as limitations on jurisdiciton that don't relate to the law/fact distinction?

I'm curious to know how you deal with these problems.
 

Mark Field: Do you realize that your view seems to imply that the SCOTUS has jurisdiction to hear an appeal from any state court case involving minimal diversity, without regard to amounts in controversy?

You ask good questions.

Yes, this is the implication of my suggestion. I don't have a real problem with it, because I don't see the SCOTUS taking very many such appeals (or, in fact, any at all).

Likewise, are the finality statutes void as limitations on jurisdiciton that don't relate to the law/fact distinction?

I think the answer here is that the Court would set its own time deadlines as rules of court rather than have Congress set them.
 

CG: I got a copy at FindLaw, and will visit those links, as well.

Anderson: Same Athenians, different perspective. My thesis, if you will, is Yoo knows fairly well the direction from which support for authoritarianist argumentation will derive, and cares little about its vector. As S.Horton comments hereabouts, context is of the essence, as a the territory is perilous once etched by exquisite theory. My impression is that many good willed people can serve in this and Yoo's diaphanous contexts, but it is important to reveal at the outset the kind of inverted obfuscation Yoo must employ to create the fiction which he conjures. I suppose the next step is the executive order which we await following the signing of MCA recently. This letter from DoJ was published a week ago; credit UPittJurist. I am sure CG is working in that new environment.
Helpful thread here.
 

"Bart" DePalma says:

For those of you who are textualists as I am, the term war has had the same commonly understood meaning in and out of our Constitution for a couple millennia now. When our soldiers are in combat with an enemy of our nation, we are in fact at war no matter what resolutions Congress did or did not enact. You might want to quibble about whether we are authorized to be at war without a declaration, but the fact of war is indisputable.

Which makes the Article I provision giving Congress the plenary power to "declare war" rather interesting. One rule of constitutional interpretation is to not make any law a nullity. If, as "Bart" maintains, a war is a war is a war no matter what Congress says, then these few words are just fluff and any such declaration as effectual as a non-binding "sense of the Congress" resolution to the effect that "Motherhood is declared to be good, Mondays to be a drag and 'Bart' an eedjit".....

"Bart" really needs to explain why he -- as a person that (self-proclaimedly) puts such a primacy on "textualism" -- thinks the Founders put this little bit of fluff in there. If he gets beyond that, he needs to explain why the founders would argue about this little piece of fluff, and make speeches as to why it's important that the Congress and not the preznit have the power to initiate and prosecute such "non-binding resolutions".

Cheers,
 

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