Sunday, June 25, 2006

Detention for Dangerous Speech?


In his discussion of the Administration's policies of detention at Guantanamo Bay, Eric Posner offers a far broader defense of detaining people without the criminal procedure protections of the Bill of Rights in a wide range of different circumstances. Posner's main thesis is controversial enough. But in the middle, he offers the following rather surprising statements about the First Amendment:
Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn't actually caused harm.

Although in 1969 the Supreme Court held that under the First Amendment governments can ban only speech that would cause "imminent" harm-- like incitement to riot-- it remains an open question whether this standard is workable in an age of global terrorism exemplified by the Sept. 11 attacks. Less restrictive tests applied in earlier cases could be resurrected if the United States created a similar statute to counter the modern wave of terrorism.

Whatever one may say about the wisdom of Posner's argument for expanding civil commitment because of the War on Terror, is he seriously suggesting that the government may arrest and detain people if they advocate things that the government deems dangerous, whether or not their speech threatens serious imminent harm? Posner seems to suggest that the question remains open, and the general tenor of his remarks suggests that it might even be a good thing if we retreated to earlier doctrines because of the global war on terror, and imprisoned "subversives" simply because their speech made them dangerous.

But there is a good reason why our free speech doctrine has developed the way it has: if the government is not required to prove that subversive speech imposes a danger of imminent and serious harm, government will tend to use its power to punish people it deems subversive for political reasons. Government will tend to punish people it deems "subversives" not because they pose a real danger but in order to squelch dissent or to find easy scapegoats to punish. For example, the Wilson Administration arrested and imprisoned Eugene V. Debs for making an anti-war speech. Debs' conviction was upheld by the Supreme Court (in an opinion by Justice Holmes) using the older doctrines that Posner refers to. If Posner is suggesting that we return to the speech restrictive doctrines of World War I and the McCarthy Era, this is one reform that we can do quite well without.


Did anyone else notice that while Posner analogizes to other situations where people may be detained on a finding of "dangerousness", he completely skips over the fact that in those situations, there is an ADJUDICATION that the person is dangerous (e.g., commitment hearing, arraignment, immigration hearing) which is subject to judicial review?

His argument assumes everyone in Guantanamo is dangerous, and then says that we can detain anyone who is dangerous. That might justify a hypothetical detention system operated by a President who actually takes his oath of office seriously, but it does not justify the actual policies of Bush, which include fighting any judicial review and asserting the position that we can detain combatants without any showing of dangerousness.

The reference to Debs and Justice Holmes brought to mind the latter's statement in the Schenck (1919) decision he authored that falsely yelling fire in a crowded theater is not protected by the First Amendment's speech clause. While that statement had (and still does have) merit, the facts in Schenck (nor Debs) did not come close to its wisdom. Schenk was not in a crowded theater. He was not yelling "fire" or anything similar thereto. He was not falsely stating something. Rather, he expressed his view in writing in pamphlets he prepared and distributed on the street that he disagreed with the US view on conscription, etc, as the country was entering into WWI, urging young men to object to conscription, etc. In a later decision within a year of Schenck by which time hostilities had lightened, Holmes seemed to pull back from Schenck somewhat. But I guess Holmes, perhaps like Eric Posner today, was caught up with the fears of the times and baldly supported the government's position. Perhaps Posner looks under his bed for terrorists every evening before going to sleep and then dreams of Sen. Joe McCarthy.

Jesus H. Christ, is Posner auditioning for John Yoo's old job?

Posner justifies Guantanamo as a POW camp. Fine, I think few people have problems with POW camps. Buth then the inmates should be treated as POWs, with all the Geneva Convention protections that pertain -- including, if I'm not mistaken, formal determination whether they were/are in fact combatants...

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Wasn't the 1918 Sedition Act repealed in 1921, after DEBS v. U S? Again, my apologies since I didn't get to the NTY article (not a subscriber), but was Posner referring to both Sedition acts? How often does something have to be repealed to go away? Doesn't a repeal mean that a law didn't survive? Or does he mean to hold that a law can be considered to have survived judicial scrutiny even if it has been rejected? Makes one wonder if such a thing would hold legal water - if precedent established on repealed law can still survive.

And as if right on cue, JB, the Weekly Standard chimes arguing that the NYTimes is a security treat:


The detainees have their status determined by military tribunals which is in accordance with the 3rd Geneva Convention (although the US says they aren't POWs). There is a long history confirming that military tribunals are competent tribunals (at the least for the US).

Nevertheless, the military tribunal reviews only happened after several years of complaints.

Please show us, Jacob, where in Common Article 3 it uses the phrase enemy combatant.


Whats your point?

Article III is only pertinent to POWs. I was merely making the point that the Bush administration is following part of the 3rd Convention in regards to these enemy combatants by giving them military tribunals to determine their status. (Despite the fact the 3rd convention only applies to POWs and to nations that fulfill the 4(?) requirements).

Jacob, are you saying that holding any tribunal, regardless of what the rules of evidence, standards and burdens of proof, and other procedural rules are satisfies the provisions of the Geneva Conventions? (IE, if the tribunal determines status by a coin toss, has geneva been satisifed?)

If you are not saying that there are no standards, then your answer has implicit within it the assertion that the tribunals that have been conducted for GTMO prisoners meet whatever standards there might be. Are you really prepared to defend that ground?

The whole editorial is specious. For one thing, it is built on some strawman that critics do not think dangerousness is a relevant factor in detention.

Thus, he raises various situations, such as commitment to a mental institution, where it is relevant. Dilan's point is but one way to address the issue.

Ditto the idea that critics want the detainees to have full-fledged constitutional rights ... the categories he lists, however, warrant more procedural protections than those in Gitmo are offered by the gov't.

I especially liked his argument that criminal defendants in various instances have their sentences in part based on their dangerousness. Sure, but a major point of the debate is that the people in Gitmo (et. al.) aren't getting anywhere as near the securities of said defendants.

To use his words, the "emotional" attractiveness of his argument is clear -- for some people at least -- but the reasoning in no way matches our legal traditions.


First, nothing in my argument suggested that "flipping a coin" would suffice.

Second, the military tribunals follow their own very rigid sets of rules. Obviously, they allow certain types of evidence, for example battlefield evidence, that aren't handled in normal civilan courts.

The Geneva convention "competent tribunal" is actually a fairly loose term (but obviously must meet some basic fairness/justice standard) that our military tribunals have always been understood to satifsy.

Further, just because they aren't as strict as a civilan court does not mean they still aren't fair and just. For example, if the burden of persuasion is lowered from beyond any reasonable doubt to a preponderance of the evidence for a tribunal that does not mean that the alleged enemy combatants are not still getting a fair trial.

Btw, I apologize for interrupting this echo chamber. I just think you would all appreciate having a lightweight contrarian viewpoint in here. :)

Now to bring in some heavy hitters...


That's why I asked it in the form of a question -- because you hadn't said that a coin toss would be adequate.

That the tribunals have procedures is obvious enough, that these procedures can be considered fair is the whole enchilada, and a point you seem willing to take completely on faith.

Forget about "battlefield evidence" for a minute, whatever that is. (A great majority of prisoners are not from battlefield surrenders anyway). If a prisoner identifies a witness said to be willing to offer exculpatory evidence, does the tribunal have on obligation to allow the witness to testify? Does it matter whether or not the witness is in US custody? Does the prisoner have the right to know who is accusing him of wrongdoing? Does he have the right to cross-examine the accuser? Suppose the accuser is someone with whom the prisoner has a dispute, unrelated to the war -- should that be admissible? These are not insignificant points.

You or I can postulate rules for a tribunal that nearly everyone on earth would agree are fair. The fact that fair rules are imaginable, however, says nothing at all about whether fair rules have been promulgated, or fair rules applied. And without the latter two points, it seems that even you, contrarian that you are, would not argue that Geneva was met.


Fair enough. I dont know the details of the military tribunals. But from what I understand about our military justice system in general - it is considered one of the fairest in the world (as far as that goes).

As long as the military tribunals for the detainees are conducted in a similiar fashion to the normal tribunals (whatever that is), then i'm satisfied. This does though raise one hiccup. I cant really find much information one or another on whether the actual tribunals for detainees follows the military's normal rules or if not, how much the rules are loosened up.

I'm more than open to information. [Caveat] preferably from a centrist organization. I'm rather skeptical of organizations like the "National Lawyer's Guild" etc.

This comment has been removed by a blog administrator.

"Echo chamber"?

Wow, if this feels like any kind of chamber for you, Jacob, then thank your tender nuts that you’re not in “isolation” at Guantanamo.

Charley, on the question of whether Muslim detainees are being treated fairly, you’re going way too far.

No matter what lengths we go to, the world is not going to accept the US’ word.

Jacob knows this, so he cynically abdicates reason, parroting the Executive's claims, in order to protect the president in his reach beyond Justice.

His is the sort of rhetoric that brings hell on Isreal.


If you don't know how the tribunals have been operating, it's not hard to find out. They have certainly not been conducted under the UCMJ -- and if they had been, there would be little controversy about the whole thing. (You don't have to take my word for this -- just look at the briefs for the US that argue they don't have to follow the UCMJ).

You might read some of the CSRT transcripts out there. It's only part of the story, because to get the decision you'd have to look at the classified file. I think this is a problem, keeping the process secret from interested civilians, but YMMV.

Judge Green's decision from January 2005 is pretty good from a descriptive point of view, even if you don't agree with her on the law. The DC Circuit decision on appeal will be out in a short while (everyone presumes they're waiting for Hamdan, maybe tomorrow) but it'll focus, I'd imagine, not on whether the CSRT procedures are fair, but whether they have to be fair.

The questions I pose in my last comment are not random: prisoners were given the opportunity to designate witnesses, but few if any witnesses were called -- there was a Boston Globe story on this in the past week or so. [I've not reviewed closely any more than the 3 files for my clients: two classified one not. None of the witnesses they requested were "available" and the efforts that were gone through to make this determination were pretty embarrassing.] Confrontation is completely lacking in CSRTs, but an essential part of a UCMJ trial.

If you're genuinely interested in this, contact me off-line.

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