My exuberant colleague Ricardo J. Bascuas has put online an early draft of an important article, The Unconstitutionality of “Hold Until Cleared”: Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet ( forthcoming Vanderbilt Law Review, April 2005).
The article argues very persuasively that the material witness statute is being seriously misused to hold innocent people in jail, and to sweat possibly guilty ones when the government lacks the information to charge them. But we knew that.
What makes this article special is that it also demonstrates through careful textual analysis that the courts which approved the government's use of the material witness statute to jail people fundamentally misunderstood the original meaning of the orignial material witness statute, which was in fact carefully designed to do no such thing, but only to allow the jailing of witnesses who failed to promise to appear, or who failed to appear when bound to do so.
Not only is this a great article, but it's Ricardo's first one — a sign of a glittering academic career in the making.
I do not share your enthusiasm for Prof. Bascuas’s article, nor his future. I found him persuasive where he adressed use and abuse of the statute in non-terrorism cases. Persuasive I suppose, because with non-terrorism cases abuse is intuitively obvious, even to the lay person. It is absolutely no surprise that one can find holes in supporting precedent. But the statute’s interpretation within the context of terrorism witnesses obviosly demands special discussion. One might ultimately conclude that such witnesses are the same as all others…but strong cases can be made for an alternative interpretation. This is particularly true when one relies so heavily on framer’s intent vis-a-vis the 4th Amendment, which may or may not have much to do with terrorism at all. One must first lay a foundation as to whether the framers would have viewed terrorism as garden variety criminality or if they might have alternatively categorized it as treason or similar war-like acts. How can one rely on the “reasonableness” reading of the 4th Amendment and not cover this ground?
Any first year law student can compellingly argue that such a statute is prone to abuse, particularly when it begins to be extended to garden-variety felonies. A more sophisticated analysis is required to defend the position that the constitution would not allow such a statute to be used when secretive, sophisticated, brutal and inhumane terror cells are involved. I don’t see that analysis in Bascaus’s work here. He must confront the hardliners who have grounded arguments that the Constitution allows relaxed civil liberties in terrorism cases. His insights into weaknesses of relied upon precedent is clever, no doubt, but ultimately says nothing about the contemporary social problem of combating terrorism within the framework of the Constitution. Mexican immigrants with witness fees have nothing to do with terrorists with nuclear weapons.
Nor am I surprised that he doesn’t address this issue head on. He comes from a background of criminal defense work, which shades his writing and his teaching. In class, he consistently fails to give “pro law enforecement” interpretations of the constitution their fair say. He visciously attacks any Court decision in favor of law enforcement, champions any in favor of defendants. That kind of one-sided approach does not bode well for his future in academia…or at a minimum it ought not to.
Bascuas does not sit on the Supreme Court, though anyone who spends time around him gains the impression that he believes he ought to. I read his article as merely his opinion of how the Constitution applies to terrorism witnesses, not a scholarly attempt to define and weigh the issue from tenable, relevant angles.
I am not surprised that you liked his article, nor that you probably wholeheartedly agree with his conclusions. That’s fine…you and he may be right. But to say that this work represents top-notch analysis of the statute, phooey.
As you are part of the group responsible for hiring new UM faculty, perhaps you ought to consider this factor: big cahones. Bring us the guy who will compellingly argue against the statute not merely on a general level, but who will specificaly argue that suspected friends of terrorists with knowledge of their activities ought to be allowed to walk the streets freely, so sayeth the Constitution. Otherwise we’ll have just another hack taking pot-shots.
Bricklayer wrote: “He must confront the hardliners who have grounded arguments that the Constitution allows relaxed civil liberties in terrorism cases.” Which “grounded arguments do you refer to? I’ve read the Constitution through a thousand times and have never seen anything remotely like that. The only reference I can find that authorizes relaxation of civil liberties is Article I, Section 9 where it says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” That doesn’t hold here. I’d also argue that it doesn’t mean that only those cases directly tied to the invasion or rebellion would be covered so, if it is implemented, we lose our civil rights even if accused of jaywalking.
You wave the term “treason” around wildly but, far from making it a reason to eliminate civil rights, the Constitution takes care to add specific information limiting handling of treason cases.
You wrote, “A more sophisticated analysis is required to defend the position that the constitution would not allow such a statute to be used when secretive, sophisticated, brutal and inhumane terror cells are involved.” Nothing in the Constitution says, “These rules apply unless the suspect is really, really scary.” Why on earth would the framers say that we needed to use one set of rules to protect the accused when someone is charged with serial murder of children and cannibalism but those protections no longer apply if we utter the magic word “terrorism” when trying someone for money laundering or working on the web site of a terrorist?
You wrote, “One must first lay a foundation as to whether the framers would have viewed terrorism as garden variety criminality or if they might have alternatively categorized it as treason or similar war-like acts.” First, the Constitution does not authorize “relaxed civil liberties” in treason cases. Second, the burden of showing that the law doesn’t apply in a particular case must rest on those who make that argument, not on those arguing in favor of maintaining the rule of law. The foundation of the Constitution is that the people reserve rights unless the government is specifically granted them. The biggest problem with allowing the relaxation of civil liberties when terrrorism is charged is that, in the end, everything will be charged as terrorism.
I took no position on the spirit of Bascuas’s work, nor do I take one now on the validity of your statments. My comments were directed at the academic quality and significance of the work. You should not have drawn any inferences as to where I stood on the issue.
Clearly, you agree with the spirit of Bascaus’s conclusions. The question is whether or not he presents quality analysis to support those conclusions. Good intentions do not an excellent legal argument make.
By the way, despite some of the arguments you advance, there exists legal scholarship to the contrary, point by point. You may not agree with that scholarship, but surely you’d agree that in the context of an article such as this, “Ashcroftian” thinking should have been confronted head on. I suppose that you could rescue Bascuas by arguing that the answers to my reservations are so entirely self-evident that I am a complete moron. But I doubt any regular reader of this blog would be so intellectually dishonest.
Sorry Mojo, but despite your attempts, my opinion of Bascuas and his work remains unchanged. He’s still a lightweight.