June 28, 2004

Eugene Volokh Looks on the Bright Side!

Michael Froomkin depresses himself by contemplating Clarence Thomas's plus royaliste que le roi dissent in Hamdi. At least there's only one of him. Thank God. But in a healthy country there would be zero.

Discourse.net: Today's Trifecta--What Does it All Mean? (Pt. I: Hamdi): Justice Thomas, dissenting, takes a very different tack, well summarized in his introductory paragraph:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly.

Thomas grudgingly admits that Congress might be able to “interfere” with the President’s holding of detainees under the exercise of the war power—making even Thomas less Royalist than the OLC lawyers and the Vice-President in this administration—but his main point is that the courts in principle have no role.

But wait. The Courts do have a role after all, since they have to decide if Hamdi’s detention is lawful. But somehow that determination doesn’t extend to deciding any facts at issue. This pushes Thomas to make the following weird claim:

… although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.

The “other branches” turns out to mean the “virtually conclusive” decision of the executive branch. Indeed, Thomas later writes that “due process requires noting more than a good-faith executive determination”—and then takes back the “good-faith” limitation in footnote 3! Even worse than that, in Thomas’s view the duration of the conflict is whatever the President says it is. No checks, no balances. How depressing....

Thomas also has a sort of point when in an attempt at reductio absurdum he notes that the plurality’s view ought to require notice and hearing before military murders such as the CIA’s firing a Predator missile at a vehicle that carried a US citizen in Yemen. There are distinctions (the CIA may not have known there was a US citizen in the car; it was abroad, Hamdi is here; the government of Yemen authorized the act on its territory so arguably the CIA acted as the agent of Yemen). But in fact why would be odd to have a rule that our government can’t murder US citizens abroad? The rule wouldn’t apply to battlefields or even behind-enemy-lines in wartime, but ought well to apply in neutral countries — why not? (Imagine Nixon toying with the idea of getting Hanoi Jane while she was vacationing in Cannes….)

Eugene Volokh, however, tries to look on the bright side as he takes this sow's ear of a dissent and tries to turn it into a silk purse:

The Volokh Conspiracy - Archives 2004-06-29 - 2004-06-30: Scalia and Thomas are about as far apart as possible in the Hamdi case... the "Justice Thomas follows Justice Scalia in lockstep" argument that some have made is simply a slur on Justice Thomas. We've seen lots of cases where Justice Thomas has taken a different view from Justice Scalia.... [C]ases such as Hamdi show that Justice Thomas has his own views, which do indeed differ in many important ways from Justice Scalia's; and he can forcefully and eloquently express them....

Let me say that, after reading Hamdi, the idea that Clarence Thomas might not always be a sock puppet for Scalia fills me with terror and dread.

Posted by DeLong at June 28, 2004 03:25 PM | TrackBack | | Other weblogs commenting on this post
Comments

So, should we begin to see the fundamental disconnect between our noble ideals and our base leadership, we then can be plunged into an amerikan gulag archipelago, instead of Solzhenitsyn's. Don't take me away, for I shall be silent when they ask if I wrote these words...

Posted by: AllenM on June 28, 2004 04:38 PM

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" plus royaliste que le roi" = "dictatorship"
Go, go Brad go!

Posted by: El Gringo on June 28, 2004 04:52 PM

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So when Thomas is not in lockstep with Scalia, is he channeling the Federalist Society?

Posted by: bakho on June 28, 2004 05:30 PM

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Even after all this, you have still not yet hit upon--or, at least, have not put forward--the real reason to be horrified and disgusted by Justice Thomas. Here it is: hold every fact invariant except the Party affiliation of the President, and he will reach the opposite conclusion, in the same direct English, with the same lapidary gridwork of citations, the same sledgehammer dismissal of the intelligence and bona fides of any opposing view.

Scalia will do this 99% of the time; Thomas 100%. There is the chink of daylight between them.

Posted by: Frank Wilhoit on June 28, 2004 06:07 PM

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"Let me say that, after reading Hamdi, the idea that Clarence Thomas might not always be a sock puppet for Scalia fills me with terror and dread."

Jesus, Brad, I never thought of it that way. I'm gonna have nightmnares now...

Posted by: Brian Linse on June 28, 2004 07:39 PM

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The guy reads the Constitution like 1787 was just last week and he's 54 years old. He'll be haunting the court for decades.

Clarence Thomas had no business being nominated. His frankly crazy opinions, filled with skewed logic and seemingly self-deceptive language to the point where one quesitons what reality he might be living in, is proof enough for me that he has no business being on the court. 'The West Wing' portrayed one of the Supremes writing an opinion in iambic pentameter. I wouldn't be surprised if that's where were headed with one of Rush Limbaugh's biggest fans. Whatever a justice needs to do to get impeached, I hope Thomas does it soon.


Posted by: cc on June 28, 2004 07:42 PM

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Recently, someone told me that Clarence Thomas is married to Barbara Bush's niece. Does anyone know if this is true?

Posted by: pol on June 28, 2004 07:50 PM

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I know nothing of her antecedents, but Thomas' wife is white, and Strom Thurmond opened wide and swallowed that with no apparent gagging. Name me, I triple-dog-dare you, a finer, larger, purer example of Party discipline, from any time or place.

Posted by: Frank Wilhoit on June 28, 2004 08:20 PM

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It’s possible to disagree with Thomas without demonizing him. After all in theory he is not making policy (oh how you guys want the court to be a policymaking body), but giving his opinion (however defective) on what he thinks the law is. When I see:

“At least there's only one of him. Thank God. But in a healthy country there would be zero.”

I am reminded of the “impeach Earl Warren” movement in the 1960’s. It’s deja vu all over again.

Posted by: A. Zarkov on June 28, 2004 09:04 PM

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"After all in theory he is not making policy (oh how you guys want the court to be a policymaking body), but giving his opinion (however defective) on what he thinks the law is."

Anybody can have an opinion. A supreme court judge whose opinion is so at odds with the basic premise of US Law is a different story. This is not an interpretive matter: the fundamental nature of habeus corpus and judicial review is explicit in the constitution text and is explicitly noted in the Federalist papers. Hamilton argues that we don't need a Bill of Rights because Habeus Corpus and a handful of other key rights are explicit in the consitution and he approvingly cites Blackstone about how exactly the type of arrest we have in Hamidi is the hallmark of tyranny. So to try to spin this as a difference of opinion is delusion.

Posted by: citizen k on June 29, 2004 04:39 AM

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A. Zarkov wrote, "It’s possible to disagree with Thomas without demonizing him."

Who's demonizing him? The guy is an intellectual zero and lied during his confirmation process.

"After all in theory he is not making policy (oh how you guys want the court to be a policymaking body), ..."

Judicial activism is *ipso facto* a liberal phenomenon. Riiiiight...

"I am reminded of the 'impeach Earl Warren' movement in the 1960’s. It’s deja vu all over again."

Again, given Thomas lied during his confirmation process, why not impeach him? (Not to mention Renquist.) Of course, perhaps it's not politically possible, but that wouldn't mean it'd be wrong.

Posted by: liberal on June 29, 2004 05:38 AM

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Ah, and how I remember all of Earl Warren's rulings that Kennedy was empowered to do anything, anytime, anywhere, forever, because we were in a Cold War, and he did "not think that the Federal Government’s war powers can be balanced away by this Court." Yes, there's no difference at all between questioning a Federal judge who explicitly supports tyranny, and questioning one who explicitly supports civil rights.

Doesn't take much for conservatives to show their true colors, does it?

Posted by: JRoth on June 29, 2004 07:02 AM

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"The guy reads the Constitution like 1787 was just last week..."

What does this mean, and how is this bad? (Has the Constitution been changing on its own..."Four legs good, two legs bad" mysteriously changing into "Four legs good, two legs better," for example?)

Posted by: Mark Bahner on June 29, 2004 09:04 AM

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I used to suggest that we could make a start on plugging the hole in the budget by firing Thomas and giving Scalia two votes. (By my rough calculation, we'd save close to $1,000,000 annually.)
Apparently, the idea has virtues beyond fiscal responsibility.

Posted by: C.J.Colucci on June 29, 2004 09:39 AM

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“This is not an interpretive matter: the fundamental nature of habeus (sic) corpus and judicial review is explicit in the constitution text and is explicitly noted in the Federalist papers.”

Of course it’s an interpretive matter, that’s what the court does. It’s not as cut and dry as you think. First the Fourth Circuit held (reversing the District Court) that since Hamdi was captured in an active combat zone, the Mobbs declaration alone was sufficient to classify Hamdi as a combatant, and under the AUMF passed by Congress, he can be detained for interrogation as part of an ongoing war. After all AUMF allows the US military to kill Hamdi, should it not allow them to detain and question him? Or do you think it can kill him, but not detain him? Thomas’ dissent aligns him with the Fourth Circuit, which the Supreme Court reversed. Thomas could be wrong as a matter of jurisprudence, but his dissent does not make him bizarre. He would be bizarre if he advocated a theory of the case that no reasonable court could ever entertain.

”Who's demonizing him? The guy is an intellectual zero and lied during his confirmation process.”

When someone writes: “But in a healthy country there would be zero.” the writer implies that Thomas is some kind of sicko. That is demonizing the man. As for him lying during his confirmation, what did he lie about? And how do you know he was lying? Do you have evidence the rest of us lack?

”Ah, and how I remember all of Earl Warren's rulings that Kennedy was empowered to do anything, anytime, anywhere, forever, because we were in a Cold War, ...”

Where has Thomas said such a thing? Hamdi was caught in an active combat zone with a rifle. This hardly qualifies as “anything, anywhere, forever.” What do you think Hamdi was doing there, out for walk?

Posted by: A. Zarkov on June 29, 2004 10:11 AM

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“This is not an interpretive matter: the fundamental nature of habeus (sic) corpus and judicial review is explicit in the constitution text and is explicitly noted in the Federalist papers.”

Of course it’s an interpretive matter, that’s what the court does. It’s not as cut and dry as you think. First the Fourth Circuit held (reversing the District Court) that since Hamdi was captured in an active combat zone, the Mobbs declaration alone was sufficient to classify Hamdi as a combatant, and under the AUMF passed by Congress, he can be detained for interrogation as part of an ongoing war. After all AUMF allows the US military to kill Hamdi, should it not allow them to detain and question him? Or do you think it can kill him, but not detain him? Thomas’ dissent aligns him with the Fourth Circuit, which the Supreme Court reversed. Thomas could be wrong as a matter of jurisprudence, but his dissent does not make him bizarre. He would be bizarre if he advocated a theory of the case that no reasonable court could ever entertain.

”Who's demonizing him? The guy is an intellectual zero and lied during his confirmation process.”

When someone writes: “But in a healthy country there would be zero.” the writer implies that Thomas is some kind of sicko. That is demonizing the man. As for him lying during his confirmation, what did he lie about? And how do you know he was lying? Do you have evidence the rest of us lack?

”Ah, and how I remember all of Earl Warren's rulings that Kennedy was empowered to do anything, anytime, anywhere, forever, because we were in a Cold War, ...”

Where has Thomas said such a thing? Hamdi was caught in an active combat zone with a rifle. This hardly qualifies as “anything, anywhere, forever.” What do you think Hamdi was doing there, out for walk?

Posted by: A. Zarkov on June 29, 2004 10:11 AM

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A. Zarkov, I agree with your description of Justice Thomas' decision as coinciding with the Fourth Circuit's view. But the position of these Jurists is hard to square with the facts on the table. Mobbs, reading papers sent through channels to the Defense Department, makes an affidavit as to what he has seen in those papers. He has no other knowledge. Hamdi's pleadings are characterized by Justice O'Connor as follows:

"Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id., at 188-189. The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began." Id., at 188-189."

Part I, third paragraph at end: I am reading from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696

We do not have to be totally cynical to think that the Government's factual statement might be wrong. The undeniable evidence is that many of the people picked up in military actions in Afghanistan and in Iraq were not guilty of anything. Still, the issue of national security is an important one.

I think this case is about the specific attitudes that our Justices have towards this "war". Those who think our institutions are most threatened give the widest latitude to the executive. Those with confidence in the legitimacy and strenght of our institutions give it the least. Souter, Scalia and Ginsberg, an unusual grouping, clearly think we have a robust nation, which can deal with this problem without surrendering core values. It is less clear that Thomas thinks this.

As an

Posted by: masaccio on June 29, 2004 11:00 AM

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Whoops.

As an additional item, the decisive issue in Justice O'Connor's opinion is her conclusion that the authorization for use of military force resolution plainly authorizes the indefinite detention of people identified by the President as persons who assisted in the September 11 attacks. Scalia's argument on this point is compelling, especially when compared to Justice O'Connor's contortions. See, Part II of the plurality, compare Scalia, Part V (although Scalia gets carried away at the end.)

Scalia sees the Anti-Detention Act 18 USC 4001, as a clear statement of Congress on the subject, and would require a clear intent to override it. Again, I see this as his basic trust in the strength of our institutions.

Posted by: masaccio on June 29, 2004 11:14 AM

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masaccio: I have not read through all the opinions yet. However, I can say that I don’t think that Thomas deserves the opprobrium DeLong dishes out. After all, the Fourth Circuit agrees with him, so he is not an outlier. Sure Mobbs could be wrong, but that’s what happens in war. War is not a civilian policing matter.

The problem here is the slippery slope. Suppose the US captures someone in combat in a foreign country that happens to have an American birth certificate on him. Does this mean he must be accorded the rights of a civilian criminal suspect on the spot? If this is the case, then the prudent thing for the troops to do is to kill him, so he can’t be released to come back to fight again.

Posted by: A. Zarkov on June 29, 2004 12:04 PM

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"Suppose the US captures someone in combat in a foreign country that happens to have an American birth certificate on him. Does this mean he must be accorded the rights of a civilian criminal suspect on the spot?"

Who is recommending that?

Posted by: Mark Bahner on June 29, 2004 08:02 PM

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Bahner: Does this not follow from the Supreme Court’s Hamdi decision?

Posted by: A. Zarkov on June 29, 2004 08:47 PM

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A. Zarkov wrote, "Suppose the US captures someone in combat in a foreign country that happens to have an American birth certificate on him. Does this mean he must be accorded the rights of a civilian criminal suspect on the spot?"

I asked, "Who is recommending that?"

Mr. Zarkov responds, "Does this not follow from the Supreme Court’s Hamdi decision?"

I've only read *about* the decision, not the decision itself. From reading *about* the decision, I can't imagine what in the decision itself would lead a person to think that "he must be accorded the rights of a civilian criminal suspect on the spot."

1) "On the spot," a civilian criminal suspect must be informed of the charges against him (the reason he is being arrested), of his right to remain silent, of his right to an attorney, and that an attorney will be provided for him, if he can't afford one.

2) In most instances, a civilian criminal suspect may not be shot simply because he is carrying a rifle.

What in the Supreme Court's Hamdi decision makes you think that the military will be required to do the things in Item #1, or will be prohibited from doing Item #2?

Posted by: Mark Bahner on June 30, 2004 09:32 AM

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A.Z. re "sicko"
"When someone writes: “But in a healthy country there would be zero.” the writer implies that Thomas is some kind of sicko. That is demonizing the man."
No, the writer implies that the decision procedure failed. In a healthy country, this candidate would not have satisfied the criteria. Not sick. Just not qualified.
One more thing: When you wrote " Hamdi was caught in an active combat zone with a rifle." presumably total confirmation (for you atleast) that this identifies him as an enemy combatant, I wondered about how these people (Iraqi civilians) protect their private property there. Just a thought.

Posted by: calmo on June 30, 2004 09:53 AM

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Bahner:

I have not had time this week to read through the Hamdi decision. As I said, my concern is more about how this decision could evolve (the so-called “slippery slope”) so as to blur the distinction between the conventional civilian policing and the waging of war not against a national state, but against irregular militias or aggressive criminal organizations. Our current national debate about how to deal with Muslim terrorists often confuses the issue by thinking about the terrorists as criminals and not war combatants. We really couldn’t deal with organized crime (the Mafia or Cosa Nostra) until the RICO statutes. The RICO statutes (very strange laws indeed) were crafted to deal with organized crime because conventional civilian policing failed. It failed because it couldn’t really cope with false testimony, intimidation of witnesses, jury-rigging, and all the other tools at the disposal of a crime syndicate. Similarly an irregular militia such as Al Qaeda can’t be treated within a civilian policing model. Anything that puts us on that road could be very dangerous. I hope the Supreme Court appreciates this, but I fear they don’t.

Posted by: A. Zarkov on June 30, 2004 09:09 PM

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AZ -Thank you for this: "... to blur the distinction between the conventional civilian policing and the waging of war not against a national state, but against irregular militias or aggressive criminal organizations."

Part of the debris caused by our military adventure is the havoc wrecked upon these very conventions/customs that in peace time make it easy to distinguish terrorist from criminal from conscientious objector, no? ( ie carrying a rifle may no longer be a sufficient condition for terrorist identification)[ but in practice, just being a male over 12 was sufficient to be detained]
And those efforts to restore those already precarious conventions ( a monumental if not impossible task) have failed miserably, due in no small part to abysmal planning, no?

Thousands of lives later, the advice of its own experts on foreign policy to stay out of Iraq, looks pretty good. And thousands of more lives yet to come I fear.
Your concerns about legal slippery slopes, the rather academic legal issues posed here, don't address the social customs/practices that have been mutilated in Iraq.
That picture has to improve for me before I can share your interest in this legal squabble.

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