Monthly Archives: June 2004

Why Lawyers Are a Lousy Attack Weapon

Being

  • late to the party
  • many time zones away
  • seriously jet-lagged
  • somewhat inebriated (2 beers will do that to me on an empty stomach when jet lagged)

it is probably unwise to post anything at all, but I'm so happy with the quality of the free wireless link in at the waag here in Amsterdam, provided by the waag society, I can't resist joining in to the debate over Eugene Volokh's suggestion

Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.

Would this tactic be allowed? Well, let's consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn't get their petitions considered).

Like the detainees at Guantanamo, our hypothetical detainees (1) “are not nationals of countries at war with the United States” — our war isn't with their countries, but with insurgencies in those countries. They (2) “deny that they have engaged in or plotted acts of aggression against the United States”; it costs them nothing to deny that. They (3) haven't “been afforded access to any tribunal, much less charged with and convicted of wrongdoing,” partly because there's nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) “in territory over which the United States exercises exclusive jurisdiction and control” — imagine that for security reasons, we need to keep them at a base that's at least as controlled by us as Guantanamo is.

It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.

Litigation will become a tactic of warfare.

First off, the hypo is highly unrealistic. The opinions do not say that foreign soldiers being held as POWs have a right to habeas relief. To my reading, they don't say anything about classic POWs. POWs' rights during a conflict are covered by the Geneva Conventions, and I do not see anything in the current court's opinions that would require additional judicial intervention during the war with the possible exception of a violation of jus cogens (eg. torture)…although that's just my gloss on it, since of course the opinions don't deal with that issue. Indeed, that is one of the critical distinction between the current cases and past ones. [I'm hazier on what happens after the war ends. Could a POW bring a claim alleging unduly delayed repatriation? To answer that I'd need to know how post-war repatriation usually works.]

What this week's opinions say that people whom the administration alleges are connected with hostilities but nonetheless LACK Geneva Convention rights (i.e. the so-called “enemy combatants”), and whom it then wishes to lock up without process or recourse, have a right to some kind of hearing to adjudicate their status and in which they can make the claim that they are being held wrongly. This seems to me like an essential element of basic deceny: if the Red Cross is not there to ensure humane treatment, someone, the courts, has to be. Given recent events, I'm somewhat mystified that this even needs to be said.

It seems to me there is so much less here than meets the eye. As Eugene notes in his third response to his own hypo, in most cases involving people who are not being held either as POWs or as criminal in conformity with the law of the jurisdiction in which they were captured (a class the should include most people who actually commit a violent act), the requirement of a hearing will be met by a military tribunal holding the very status hearing required by the Geneva Conventions themselves, hearings that the Administration has, inexplicably to my mind, refused to hold for the Guantanamo detainees. Once this tribunal reaches a result, we can deal with subsequent attempts to litigate much like we deal with prisoner habeas today—and that's not real friendly to the petitioners.

The US routinely held in-the-field initial hearings during both the Vietnam War and the first Iraqi war, and I have yet to read a single suggestion that doing so impacted the war effort. These hearings were not held in Iraq II, presumably because the muscular Bush faction didn't want any of that namby-pamby lawyer stuff. That was an error.

Congress has a role here too. In the unlikely event that a future administration feels a need to hold 50,000 people as “enemy combatants” and we think that this alone isn't a sign that the executive has gone nuts, then Congress can provide a system by which any cases they might bring will be adjudicated.

Last, although I hate making this argument, I have to note that the Mathews test that the Supreme Court relied in the Hamdi case itself supplies an inelegant answer to the mass-litigation-as-war-tactic hypo. The Mathews test explicitly considers the cost of providing additional process. If there is a danger that there will be mass recourse, swamping the hearing-provider, this itself weighs against the additional process. (Which is why Mathews has no place being used to define the extent of human rights — it's too weighted by its nature in favor of the government interest, too willing to buy into the idea that “the government” has independent interests other than its role as agent of “We, the People”, and that those government interests can be asserted against the People, but that's a different debate…).

I trust if the beer and the time shift has addled my wits, the wonderful commenters who have recently frequented this blog will set things straight.

Posted in National Security | 2 Comments

Home Network Installation: Real Soon Now

Our home remodelling project is advancing, but slowly. This week they put on the doors and windows in the new part of the house (we are still in Phase I: build new part; Phase II is 'rehab old part'; we were supposed to be finished with it all by now.) The plumbing and electric is mostly done and the ducting. If all goes well, the network guy is coming Real Soon Now to wire the home network…

Meanwhile I have to spec out the equipment. We settled on structured cat 5e cable that will handle phones and the network. I think I've picked a router and a switch, although I haven't ordered either. The old wireless router and switch will be relegated to serving as a mere access point and run off a different part of the network.

I ordered patch panels and also a wall mount for them as I still don't have a clear idea of what sort of rack or other platform I need to hold the gear. Something pint-sized compared to the professional gear, I'd imagine. Maybe this?

The gear is going to live wedged in a very wide closet about 26”deep, with the patch panel living on the 26” wall. In the fullness of time it may hold more switches, a server or two, some phone gear, and who knows what. I think I want a rack with wheels rather than the kind you screw into the floor and (9') ceiling, but beyond that there seem to be a bewildering number of choices, all of which need accessories to hold anything.

Of course, I won't get to use any of this stuff until that side of the house has the electricity turned on and is ready to move into. I just hope that installing the new network doesn't require pulling the plug on the existing, temporary, DSL connection. If it does, I may have to try pointing a Pringles can at the University.

Posted in Adventures in Remodeling | 3 Comments

Porn Fight To Continue; Kidnapping Suit Stopped

The Supreme Court finished out its term by Throwing Out a Human Rights Lawsuit, and sending the Child Porn statute back for more consideration of its chilling effects (or not) in light of improvements in filtering technology.

Full text:

Judging only from the press reports, these are both ominous: It's not good that our government can kidnap people with no fear of civil liability. It's true that there is a diplomatic protest system, but it's very hard for foreign nations to get much from a superpower. Our courts are a greater constraint on our government than diplomats (note: this is only a claim as to relative efficacy, no more).

The Ashcroft v. ACLU 5-4 is going to put a lot of pressure on people to mandate internet architectures that are filtering-friendly. Although they don't have to be privacy-destroying technologies, they tend to be. And that could be quite ugly.

I wish I had time to write more about these decisions (and finish part III of my discussion of yesterday's trifecta), but I have a lot of preparing to do for my Amsterdam trip. I'm sure that the SCOTUS Blog will have lots of info.

If I get very organized, which is dubious, I may queue up an item or two to go online while I'm en route, but generally speaking it's possible blogging may be sparse for the rest of this week. It's certain to be less than the recent furious pace.

Meanwhile I'm waiting for someone to call this court's ducking of some major issues, and picking its shots on others, an exercise of the (I thought discredited?) Bickelian 'Passive Virtues'.

Posted in Law: Constitutional Law | 6 Comments

Dumbest FOIA Excuse Ever?

David Sklar, Justice Department's Fragile Read-Never Database. This must surely be a candidate for the dumbest FOIA excuse ever:

The Center for Public Integrity filed a Freedom of Information request to get a copy of the Foreign Agent Registration database, which includes information on activities by registered lobbyists on behalf on foreign governments.

The Justice Department said that it couldn't provide a copy of the entire database because doing so could destroy the database.

Meanwhile, you can go to the appropriate office in Washington DC and pay fifty cents a page to make copies of documents. The information is available in (expensive) page-by-page drips, but not as a whole.

I am curious to learn about the quantum database software in use that could subject the data to changes by reading it. Or perhaps the 8 inch floppies that the data is stored on would get too hot and melt if they had to spin so fast to copy entire files?

It's hard to imagine what's behind this. Terminal incompetence? Cussed desire to undermine FOIA? Halliburton provided the equipment?

Or could it be a Rovian fear that someone will cross-index the database with, say, the lists of donors to the Bush campaign?

Posted in Politics: US | 4 Comments

Today’s Trifecta–What Does it All Mean? (Pt. II: Guantanamo)

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I'm not entirely happy with how the majority got there.

Continue reading

Posted in Guantanamo, Law: Constitutional Law, Law: International Law | 1 Comment

‘When can I keep an enemy combatant?’ The Color Chart Version

Aaron Swartz, the man who brought blogdom NYT permalinks and cool tools for finding them, presents, When can I keep an enemy combatant?.

This is a lot easier to follow than the pure text kind of analysis.

Posted in Law: Constitutional Law | 7 Comments

Other Voices On Today’s Decisions

Now that I've sorta figured out what I think, other takes on today's decisions:

Scrivener's Error,

Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Lots at SCOTUS Blog

Greg Goelzhauser, Did Congress authorize indefinite detention?

Marstonalia on Hamdi

What happens to Hamdi himself — and what sort of rules exist for future cases of this sort — will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court — and possibly more, depending on the views of those who joined O'Connor's opinion — are not going to be deferential.

Legal Theory Blog has a round-up of the votes and other comments.

Update: Read Balkin

Posted in Law: Constitutional Law | 3 Comments