Balkinization  

Thursday, June 12, 2008

Fear-Mongering On the Supreme Court

Brian Tamanaha

From Justice Scalia's dissent:

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

An instant classic of the worst order: fear-mongering.


Comments:

It's worse than fear-mongering, it's just intellectually dishonest. Look, what he says is true, isn't it? To the extent habeas corpus -- or the 4th Amendment, or the 5th or 6th, etc, or any of our civil liberties -- result in the potential for dangerous and/or guilty persons to go free, then yes, more Americans will be killed. That's just the price one pays for a free society, and it means that "more will be killed" is never, by itself an argument for anything, unless you're about 12 years old. But Scalia knows this. When he loses a battle, he throws a tantrum, and his vaunted (and much overrated, in my view) intellect be damned.
 

Intellectual dishonesty from Scalia? Like heat from the sun.

Hopefully Brian will forgive a minor digression, but, folks, you just _have_ to get over to Lyle Denniston's "SCOTUS Wiki". I cannot yet put in words what an exciting project it looks to be. I would be writing Lyle directly to say so, but have been unable to find an address for him, and, besides, y'all need to check out this amazing resource.
 

Typical fear-mongering, as has been said, from the right. I would like to the entire texts of the findings and rebuttals...it should be informative to see how the dissenters justify their positions!

And by the way, RobertLink, your spot on about scotuswiki. Looks great!
 

glennnyc said...

It's worse than fear-mongering, it's just intellectually dishonest. Look, what he says is true, isn't it? To the extent habeas corpus -- or the 4th Amendment, or the 5th or 6th, etc, or any of our civil liberties -- result in the potential for dangerous and/or guilty persons to go free, then yes, more Americans will be killed. That's just the price one pays for a free society, and it means that "more will be killed" is never, by itself an argument for anything, unless you're about 12 years old.

Sir, those Americans on the firing line who you have just blithely told in your best Marie Antoinette imitation to eat lead for the greater good include my brother and several friends. On their behalf, I ask if you know what the acronym FO means?
 

Brian,:

This is not "fear mongering." The math here is so simple that even glenn gets it. The present status reviews are loose enough that we have in fact released a Taliban commander and several of his fighters by accident so that they could return to the battlefield to engage our troops all over again. The higher the bar extra-constitutionally imposed by the courts for combatant status hearings, the more enemy you allow to return to the battlefield to get a second shot at killing our troops.

The dictum that it is better to release 10 guilty men than allow one innocent man to be convicted applies after the crime is accomplished and the threat is theoretically gone. However, during wartime, the ten you release are duty bound to try to kill you. The threat is ongoing. That is why wartime detention is held to be a preventative measure to save lives, not a punitive measure to penalize the detainee.

Justice Scalia declined to take the next step in the logical progression of his thought. If taking prisoners is going to result in a court releasing them back to the battlefield to kill our soldiers, exactly what incentive does that provide our soldiers to keep taking prisoners rather than killing every enemy on sight? Our current POW rules are followed because the captured enemy is supposed to be kept out of circulation for the entire war and breaks down when they are released.
 

"Sir, those Americans on the firing line who you have just blithely told in your best Marie Antoinette imitation to eat lead for the greater good include my brother and several friends. On their behalf, I ask if you know what the acronym FO means?"

Well then, I suggest we bring your brother and several friends home post haste, along with all their fellow servicemen and women.

"Justice Scalia declined to take the next step in the logical progression of his thought. If taking prisoners is going to result in a court releasing them back to the battlefield to kill our soldiers, exactly what incentive does that provide our soldiers to keep taking prisoners rather than killing every enemy on sight?"

The answer to that question is that American soldiers are honorable men and women who follow orders. Do you believe that American soldiers are *not* honorable men and women who follow orders?

Patrick Meighan
Culver City, CA
 

The rights of the accused will almost certainly cause more Americans to be killed.

Requiring proof beyond a reasonable doubt in criminal cases will almost certainly cause more Americans to be killed.

The right of the people peaceably to assemble will almost certainly cause more Americans to be killed.

Protection for speech and the press will almost certainly cause more Americans to be killed.

The rights of free people generally will almost certainly cause more Americans to be killed.

If the standard is protection, the obvious solution is a police state.

Scalia would presumably be very much at home there.

However yes, it's worse than that, because even accepting his premise, the merits of his argument is are highly dubious. There is substantial evidence that Gitmo and what we do to prisoners at Gitmo increases the chances of Americans getting killed. Al Qaeda recruiting has never had it so good.

So there's no way to save Scalia's "reasoning" here. Although I don't know what goes on in his head, it does seem so far below any standard of legal scholarship, that it could be a temper tantrum. So I'm inclined toward glennyc's summary. But who knows.
 

It will almost certainly cause more Americans to be killed.

Scalia is selective in his concern. In Herrera v. Collins, 506 U.S. 390 (1993), Scalia and Thomas concluded that the Constitution does not preclude the execution of people whom the state knows to be innocent (where they were legitimately convicted and then acquire new evidence that conclusively establishes their innocence). In any case, isn't concern about Americans being killed result-oriented jurisprudence?
 

I'm focused a bit more on Scalia J's "game of bait and switch" language. He's used this trope more than once. By "the game of bait and switch" he always means: the President declares that he has the power to do whatever he wants. (In David Addington's memorable phrase, we'll keep pushing and pushing until someone makes us stop.) The administration erects every roadblock possible to efforts to challenge the President's unilateral assertion that he is God. After years of obstructionism by the administration, the Supreme Court finally says the President isn't God after all. To Scalia J, that is "bait and switch".
 

"If the standard is protection, the obvious solution is a police state."

Is it so obvious? Don’t police states have a rather lethal history?
 

This comment has been removed by the author.
 

patrick meighan said...

BD: "Sir, those Americans on the firing line who you have just blithely told in your best Marie Antoinette imitation to eat lead for the greater good include my brother and several friends. On their behalf, I ask if you know what the acronym FO means?"

Well then, I suggest we bring your brother and several friends home post haste, along with all their fellow servicemen and women.


Then the enemy can come to NYC again and hunt civilians like Glenn. While this alternative has a certain hint of justice, I do not wish Glenn the fate which he blithely wishes our troops.

I think it is better that we keep the soldiers on the hunt and finish off al Qaeda.

BD: "Justice Scalia declined to take the next step in the logical progression of his thought. If taking prisoners is going to result in a court releasing them back to the battlefield to kill our soldiers, exactly what incentive does that provide our soldiers to keep taking prisoners rather than killing every enemy on sight?"

The answer to that question is that American soldiers are honorable men and women who follow orders. Do you believe that American soldiers are *not* honorable men and women who follow orders?


I think soldiers are human beings. Asking them to die so you can congratulate yourself for releasing terrorists in the name of due process will bring predictable results.
 

Glennnyc, don't forget the 2nd Amendment. The Court is set to decide District of Columbia v. Heller. I'm sure Bart, Tony S., and all their like are going to be siding with the District on the grounds that if Heller were to win, more Americans would die.
 

Even if denying habeas corpus rights is effective policy, isn't Scalia the guy who says that the Court's role is not to make policy, even good policy, but to decide on whether laws are Constitutional? And isn't he the guy who strives for the most literal interpretation of the language in the Constitution?
 

As Scalia says in a another context: Get over it"
 

I guess in Scalia's book "Get over it" is trenchant legal analysis.
 

Brian:

Exactly where does Scalia err in this analysis?

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed...

In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex- Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

 

Uh, Bart, if we are releasing these people already and if they are returning to the battle field (by the way are they returning because of they were terrorists already or because they became more radical after their treatment at GTMO?), how does this decision impact them?

It also seems to me that the quoted passage from Scalia makes no effort at legal analysis, but is simply a rant on what Scalia believes to be the most practical, Constitutional requirements be damned...
 

mclamb6 said...

Uh, Bart, if we are releasing these people already and if they are returning to the battle field (by the way are they returning because of they were terrorists already or because they became more radical after their treatment at GTMO?), how does this decision impact them?

Go read Scalia's sources. One of the mistakenly released terrorists was a Taliban commander who bragged that he fooled the US military.

It also seems to me that the quoted passage from Scalia makes no effort at legal analysis, but is simply a rant on what Scalia believes to be the most practical, Constitutional requirements be damned...

The section I quoted was a factual argument on the consequences of the court's decision. The rest of his dissent is dedicated to the decisions legal shortcomings.
 

"Go read Scalia's sources. One of the mistakenly released terrorists was a Taliban commander who bragged that he fooled the US military."

There seems to be this misconception that this ruling will automatically lead to the automatic release of detainees. It does not do that - it simply says that the detainees are allowed habeas rights.

Scalia cites that these were released detainees that killed people or became terrorists again - what difference would have made if they had habeas or not? They were released because the military tribunal found that they had no reason to hold them. Whether or not they had habeas rights would make no difference. They can't hold them if they don't have any evidence now, and if they have habeas, they won't be able to hold them either.

I would put it to Scalia this way - if we had no evidence against those that attack us, and we held him without proper access to habeas and then we released him anyway, how would having access to habeas make any difference?

Or do we want to allow our government to seize and hold whoever they like regardless of evidence and then have no ability to even see the evidence and request a hearing?

As Collin Powell said:
"The concern was, well, then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus. So what? Let them. Isn’t that what our system’s all about? And by the way, America, unfortunately, has too many people in jail, all of whom had lawyers and access to writs of habeas corpus. And so we can handle bad people in our system."
 

Bart says:

"Go read Scalia's sources. One of the mistakenly released terrorists was a Taliban commander who bragged that he fooled the US military."

And? How will granting habeus create more deaths if American deaths are already an issue? Scalia's argument in this regard is a complete and total red herring.
 

"It's worse than fear-mongering, it's just intellectually dishonest....To the extent habeas corpus -- or the 4th Amendment, or the 5th or 6th, etc, or any of our civil liberties -- result in the potential for dangerous and/or guilty persons to go free, then yes, more Americans will be killed. That's just the price one pays for a free society, and it means that "more will be killed" is never, by itself an argument for anything, unless you're about 12 years old. But Scalia knows this. When he loses a battle, he throws a tantrum, and his vaunted (and much overrated, in my view) intellect be damned."

Justice Scalia acknowledged your point and answered it:

"It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950) , when he established the prison at Guantanamo Bay for enemy aliens."

"How will granting habeus create more deaths if American deaths are already an issue? Scalia's argument in this regard is a complete and total red herring."

That first sentence is completely illogical. Scalia's position is amazingly simple, yet so many people (purposely?) misstate it. His point here is that if military commanders, who are pretty much only concerned with keeping dangerous prisoners away from the battlefield, mistakenly release prisoners, how much worse will our courts fair--which have other issues (all of criminal procedure) to influence their decision? To put it simply, it's much more effective in completing Task A to focus on Task A, instead of Task A, B, C, D, E, etc.

Reasonable people can disagree about Scalia's claims. But is it too much to ask for critics to actually read the opinion before slamming it as intellectually dishonest?
 

gg,

Considering our criminal system deals with people that are dangerous and bent on killing people quite frequently, I fail to see how your clarification of Scalia's point adds anything. Exactly why would the courts be less competent in dealing with these issues such that they lead to more deaths? In fact, I could just as easily argue that since the military is so bad (apparently) at determining which people are a danger and which aren't (based on Scalia's cited examples), maybe allowing the courts, whose purpose is to facilitate proper fact finding, would be more effective.

Moreover, a glaring omission from Scalia's fear-mongering is the potential that some of the people that have been released and who took up arms against the US, weren't terrorist before being taken into custody, but were "converted" because of the their detention and treatment. A habeas review may therefore prevent the radicalization of some detainees...
 

Do you find it as interesting as I do, to compare Rutledge's dissent in Yamashita with Scalia's dissent in Boumediene?

I know there are different issues being raised in each case, but the general considerations of the applicability of Constitutional rights to foreign nationals in custody do seem to coincide.

Stone said in the opinion of the former case:

"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."

That in itself is a telling statement of the way the Court viewed habeas 60 years ago.

But Rutledge's dissent with which we are all familiar still is useful to the present case, even though the issues raised are somewhat different. His view of the coherence, tradition and purpose of American constitutional law in this area are the same as mine...

Rutledge: "The novelty is legal as well as historical. We are on strange ground. Precedent is not all-controlling in law. There must be room for growth, since every precedent has an origin. But it is the essence of our tradition for judges, when they stand at the end of the marked way, to go forward with caution keeping sight, so far as they are able, upon the great landmarks left behind and the direction they point ahead. If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. The proceedings in this case veer so far from some of our time-tested road signs that I cannot take the large strides validating them would demand."

and

"This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. If we need not or cannot be magnanimous, we can keep our own law on the plane from which it has not descended hitherto and to which the defeated foes' never rose."

and

"It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process [327 U.S. 1, 42] of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late."

and

"Wholly apart from the violation of the Articles of War and of the Geneva Convention, I am completely unable to [327 U.S. 1, 79] accept or to understand the Court's ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all."

and finally,

"I cannot accept the view that anywhere in our system resides or lurks a power so unrestrained to deal with any human being through any process of trial. What military agencies or authorities may do with our enemies in battle or invasion, apart from proceedings in the nature of trial and some semblance of judicial action, is beside the point. Nor has any human being heretofore been held to be wholly beyond elementary procedural protection by the Fifth Amendment. I cannot consent to even implied departure from that great absolute."

Substitute "habeas" for the fifth/due process in his language and you get a probable concurring opinion he would have filed if he had sat on the Boumediene case.

There is a striking contrast with both the tone and the aspirations of the Scalia dissent.
 

"Bart" DeDicta quotes Nino:

"These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection."

As pointed out, the ruling doesn't require anyone to be released. And if we assume arguendo that in fact, (at least some of) the previously released detainees were in fact enemy combatants released to go engage in further hostile or criminal actions (some in opposition to the U.S.-installed gummint in Afghanistan, which some might think is a little lacking in legitimacy itself), it's worthy to ask whether perhaps a different group of people examining the evidence might not make a better determination than has been done under the system that Scalia (and "Bart") is so vigourously defending here. If fact, it almost reeks of Scalia's sidign with the majority in Dubya v. Gore, where Scalia insisted that the very evil he proclaimed to be so concerning should be the result of his preferred "remedy".

Cheers,
 

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