Balkinization

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Balkinization
an unanticipated consequence of
Jack M. Balkin

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Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Mary Dudziak
mdudziak at law.usc.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Bernard Harcourt
harcourt at uchicago.edu
Scott Horton
shorto at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
marty.lederman at comcast.net
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
jason.mazzone at brooklaw.edu
Linda McClain
lmcclain at bu.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at princeton.edu
Rick Pildes
rick.pildes at nyu.edu
Alice Ristroph
alice.ristroph at shu.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Judicial selection

Sarah Palin and the Department of Law

Podcast on The Constitution in 2020

Preventive Detention in a Different Kind of War

So Long and Thanks for All the F-Tests

WWWD, Health Care Edition

Just A Few Blogs

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Tuesday, July 07, 2009

Judicial selection

Sandy Levinson

Jack and I both had the pleasure of attending the Aspen Ideas Festival last week and, among other things, presenting our somewhat competing visions of "the Constitution in 2020." (Though I think his edited book of that name is excellent, as readers know, perhaps to the point of tedium, I believe that we'd be better off if the 2020 Constitution had been amended in some fundamental respects). I also had the opportunity to moderate a panel on judicial selection, with former Justice Sandra Day O'Connor, Justice Stephen Breyer, and Prof. Viet Dinh, who was one of the major "judge-pickers" in his capacity as an assistant attorney general for legal policy in the first couple of years of the Bush Administration. Anyone with extra time on his/her hands can watch the entire panel, which was on C-SPAN.

Posted 4:15 PM by Sandy Levinson [link]

Sarah Palin and the Department of Law

Mark Tushnet

The liberal blogosphere is getting all snarky about Sarah Palin's reference to the "department of Law" in Washington. I'd just like to point out that it doesn't take much (a Google search) to discover that the Attorney General of Alaska runs the state's Department of Law. Surely a governor is entitled to describe the legal office associated with the executive branch as the branch's department of law.

Posted 12:32 PM by Mark Tushnet [link]

Monday, July 06, 2009

Podcast on The Constitution in 2020

Here is a podcast in mp3 format of Krys Boyd's interview with me on KERA in Dallas (serving North Texas), discussing constitutional interpretation and The Constitution in 2020.

Posted 11:41 PM by JB [link]

Thursday, July 02, 2009

Preventive Detention in a Different Kind of War

Guest Blogger

Liza Goitein

Preventive detention is a hotly debated topic right now. The media (old and new) is abuzz with controversy over the President’s plan to seek legislation or an executive order authorizing the indefinite detention of suspected terrorists without charge. But the Supreme Court has acknowledged that it’s permissible to detain enemy “combatants” in a war for the duration of hostilities, and Congress has declared war, in so many words, on Al Qaeda and the Taliban. So why is the idea still so controversial?

I think the answer lies, at least in part, in the differences between international armed conflict (war between nation states) and non-international armed conflict (war between a nation state and “irregular” non-state forces like Al Qaeda)—and, more to the point, how those differences play out in the public mind, if only at a subconscious level.

The law of war authorizes the detention of prisoners of war for the duration of hostilities without any individualized assessment of dangerousness, but only in the context of international armed conflict. For non-international armed conflict, the law of war recognizes the possibility that detention may occur and requires that such detention meet baseline standards; but it doesn't actually authorize detention, leaving that to domestic law. In Hamdi v. Rumsfeld, the Supreme Court held that the 2001 Authorization for Use of Military Force provided the necessary authorization and incorporated the rule that “combatants” (the Court’s term) are subject to detention for the duration of hostilities.

The U.S. thus has authority under domestic law to apply the same detention rule that the law of war establishes in international armed conflict. The problem with this arrangement is that the rules that apply in international armed conflict are a poor fit for the war we’re actually fighting. Wars against other nations differ from wars against irregular forces, and those differences are at least intuitively understood by the American public and the rest of the world. Three of these differences are crucial when considering
the issue of detention.

First, in wars between nations, the class of persons subject to detention for the duration of hostilities is clearly defined, and the people who fall within that class are relatively easy to identify. The relevant definitions (under the Third Geneva Convention) mostly involve membership—i.e., membership in the regular armed forces, militias or volunteer corps, or civilian support units. Determining membership in these groups is a fairly straightforward exercise. Army membership is verifiable in any number of ways, and people are treated as “members” of militias or civilian support units only if they wear fixed insignias or carry special identity cards.

By contrast, five years after the Hamdi decision, there is still no consensus among the lower courts on who is detainable in the current conflict. The courts have struggled to articulate a workable definition of “membership” in Al Qaeda or the Taliban—let alone a reliable means of identifying those who fall within that definition. The “command structure” test adopted in recent decisions is a valiant effort, but it’s necessarily imprecise and bound to be error-prone.

Second, the proviso that enemy forces can be detained “for the duration of hostilities” places a meaningful limitation on detention in the context of international armed conflict. Wars between nations tend to have endings—treaties, formal acts of surrender, or the like. In part, that’s because the resources being spent are those of the country, and few countries are willing or able to continue to spending those resources indefinitely (the Hundred Years War notwithstanding).

A war between one nation and irregular forces in another nation, on the other hand, is much less likely to reach a conventional—or even definable—end. Detention “for the duration of hostilities” in that type of conflict can easily become an effective life sentence. That’s certainly the case in the war against Al Qaeda, where no one either inside or outside the government has yet to articulate a persuasive vision of what “victory” would look like.

In addition to these two distinctions, there’s a third distinction that strikes me as significant—what I think of as the “volitional” argument against preventive detention.
The purpose of detaining enemy forces is to prevent their return to the battlefield. In an international armed conflict, members of the opposing nation’s armed forces are generally compelled by the law of their country to fight on its behalf. Abandoning the fight would be desertion, maybe even treason. Return to the battlefield, under those circumstances, is not a matter of personal volition; it’s an externally compelled certainty.

In non-international armed conflict, the situation is quite different. The actions of the enemy forces are usually prohibited, not compelled, by the laws of their own country. Accordingly, for members of groups like Al Qaeda or the Taliban, return to battle is a choice, as is continuing membership in the organization. The available data on released detainees supports that point. By the Pentagon’s own estimate, 6 out of 7 released Guantánamo detainees are not suspected of any post-release terrorist involvement.

Why does this matter? Because the Supreme Court has found preventive detention to comport with substantive due process in only two categories of cases: (1) where there is a clear and imminent end point to the detention, as in the case of pre-trial detention or detention pending removal in immigration proceedings; or (2) where the detained individual is both dangerous and unable to control his or her actions, usually by virtue of mental illness or defect. Indefinite detention based solely on a prediction of future dangerousness—however substantiated the prediction, and however great the potential danger—is considered inappropriate for persons who have the capacity to control their behavior and to conform their conduct to the law. If this analysis were applied to the war setting, it would justify preventive detention of regular army soldiers (who are bound to fight), but not irregular “combatants” (whose return to the battle is a matter of choice).

Of course, the Court is unlikely to apply a substantive due process analysis to suspected enemy fighters captured and held overseas. And thus far, the Court seems perfectly comfortable with a rule that combatants may be held for the duration of hostilities. But the Court’s approach to preventive detention in cases where due process does apply has significance outside its legal context. Like most due process analyses, it reflects a common, baseline understanding of what is fair and appropriate in situations where the government restrains an individual’s liberty. In this case, I think it also reflects a shared understanding of the notion of individual culpability. Put simply, we don’t lock people away for future acts that they may yet choose not to commit. That understanding may give way during times of war, but it doesn’t always give way easily, as we’re seeing now.

Some have argued that the answer is something in between the preventive detention model for prisoners of war in international armed conflict (i.e., detention for the duration of hostilities without any individualized assessment of dangerousness) and no preventive detention at all: a more constrained system of preventive detention, in which the government must prove future dangerousness in each case and the detention is subject to frequent review. Indeed, such a system would be at least partially consistent with the law of war, which authorizes the detention of civilians in international armed conflict under just such constraints. (I say “partially” because international armed conflicts, as noted above, are less likely to last forever.) But I’m not sure it would be consistent with our own concept of due process—specifically, the idea that people who are capable of controlling their own actions should not be subject to potentially endless detention based on predictions of “future dangerousness.” And that’s one reason why the debate on preventive detention is very far from over.

Liza Goitein is the Director of the Liberty and National Security Project for The Brennan Center for Justice

Posted 11:08 AM by Guest Blogger [link]

Wednesday, July 01, 2009

So Long and Thanks for All the F-Tests

Ian Ayres

Crosspost from Freakonomics:

I’ve been reading a truly excellent book by Joshua Angrist and Jorn-Steffen Pischke called Mostly Harmless Econometrics: An Empiricist’s Companion. It’s not written for a general audience, but if you pulled an A- or better on a college-level econometrics course (and if you love Freakonomics), then this is the book for you. It should be required reading for anyone who is trying to write an applied dissertation. It is the rare book that captures the feeling of how to go about trying to attack an empirical question; and it does this by working through two or three dozen of the neatest empirical papers of the last decade (often coauthored by Angrist). It is also peppered with references to Douglas Adams’s writing — so what’s not to like?

Here’s a fine example, in plain English, explaining how econometricians think about what they are doing:

[Something that distinguishes] the discipline of econometrics from the older sister field of statistics … is a lack of shyness about causality. Causal inference has always been the name of the game in applied econometrics. Statistician Paul Holland (1986) cautions that there can be “no causation without manipulation,” a maxim that would seem to rule out causal inference from nonexperimental data. Less thoughtful observers fall back on the truism that “correlation is not causality.” Like most people who work with data for a living, we believe that correlation can sometimes provide pretty good evidence of a causal relation, even when the variable of interest has not been manipulated by a researcher or experimenter. (p. 133)

The book backs up this assertion by teaching the reader to think carefully about what assumptions about the counter-factual are necessary to make a causal inference. I was thinking about the book a couple of weeks ago when reading a New York Times article discussing the college and law-school years of Supreme Court nominee Sonia Sotomayor. The article in the second paragraph claims that Judge Sotomayor “benefited from affirmative action policies.” To me, this is pretty clearly a causal claim and this claim is not well supported by the subsequent evidence in the article.

At least one relevant counterfactual question to ask is “What would have happened to Judge Sotomayor in applying to college and law school in a world without affirmative action?” We are told that Ms. Sotomayor was an honors student in high school and that she graduated near the top of her class in college. James A. Thomas, a former dean of admissions, concluded that “Ms. Sotomayor’s background had little role in her acceptance to [Yale Law] school.” This is hardly strong evidence for claiming that she was a beneficiary of affirmative action. The article shows that it is not just econometricians who can mistake correlation for causation. It is a mistake that a reader of Angrist and Pischke is less likely to make.

Posted 2:36 PM by Ian Ayres [link]

WWWD, Health Care Edition

Frank Pasquale

What would George W. Bush do about health care? His former advisor, N. Gregory Mankiw, provides a clue in his article The Pitfalls of a Public Option. Like Bush assuring consumers that "you can go to an emergency room" if you need health care, Mankiw argues that no public option in insurance is necessary: "We don’t need government-run grocery stores or government-run gas stations to ensure that Americans can buy food and fuel at reasonable prices." Here is Paul Krugman's response:

Economists have known for 45 years — ever since Kenneth Arrow’s seminal paper — that the standard competitive market model just doesn’t work for health care: adverse selection and moral hazard are so central to the enterprise that nobody, nobody expects free-market principles to be enough. To act all wide-eyed and innocent about these problems at this late date is either remarkably ignorant or simply disingenuous.

Krugman actually understates just how unconventional the economics of health care can be. Given these divergences from standard market models, Brad Delong may well be right to say that even Friedrich Hayek could approve the idea of a public plan: it's a way "to use the market as an institutional discovery mechanism."

Of course, most modern-day Hayekists are more likely to take Mankiw's view than Delong's; namely, that "private insurers, lightly regulated to ensure that the market works well, would offer Americans the best health care at the best prices." We have a sense of how concentrated the private insurance industry and providers are. What exactly does "light regulation" look like in that context?
Read more »

Posted 10:15 AM by Frank Pasquale [link]

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