June 29, 2004

A Previously-Unimagined Point of Military Vulnerability: The Habeas Corpus Litigation Gap

Eugene Volokh is scared that the Supreme Court's decision in Rasul has enabled an enemy to open up a second front against us in any future war. Yes, ladies and gentlemen, he is scared that we now suffer from a habeas corpus litigation gap.

Money quote: "if I were the other side's general, I'd... teach my soldiers... to file habeas petitions":

The Volokh Conspiracy - Archives 2004-06-29 - 2004-06-30: Litigation as an enemy military tactic: ...Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments.... We capture 50,000 alleged enemy soldiers... the enemy forces have surrendered en masse... 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?... 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... soldiers... have an obligation to... harass their captors.... Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions.... This would be a very substantial burden, and one that to my knowledge we've never had to labor under....

So that's the source of my misgivings about the Court's Guantanamo decision. Let's hope that my concerns eventually prove groundless, and litigation does not indeed become one of the enemy's weapons of war.

Now I--James Bradford DeLong--cannot respond to this on an appropriate level. The only thing that could respond to this on the appropriate level is the Fafblog. But nobody answers the Fafphone. So I must try my best.

First, I will channel Giblets:

Professor Volokh is 100% correct. The burden of processing and adjudicating a habeas corpus petition from each prisoner is overwhelming. The paperwork alone would bring our army to its knees. If that wasn't enough, the prisoners could then deliberately file their habeas corpus petitions in the wrong jurisdiction! Forcing the Supreme Court to waste weeks of its time on each individual petition! We cannot allow our army to be defeated, our nation conquered, our loved ones killed, and our pets eaten because our soldiers are unable to leave the courtrooms when enemies attack! We must follow the wise Clarence Thomas, and submit to the awful wisdom of the Executive Branch!

But Volokh does not go far enough. Even if we prevent prisoners from filing habeas petitions, we must still feed them, clothe them, house them, and guard them. Even though cooks and guards cost a lot less than lawyers for Dewey, Cheetum, and Howe, it is still the case that each prisoner imposes a huge burden on the army just by not dying immediately--a huge burden that saps our war-fighting power. And can we afford to have our war-fighting power be sapped? No! It might make the difference: allowing our war-fighting power to be sapped might mean the END OF FREEDOM!

So I advocate that we take Professor Volokh's advice, and ban prisoners from filing habeas corpus petitions. The prospect of the crippling of our army by the habeas corpus litigation gap is just too terrible to risk! And I recommend that we go a step further, and take Genghis Khan's advice, and take no prisoners at all save those who can clearly be put to work to earn their keep. The prospect of sapping our war-fighting power by guarding and feeding prisoners is just too terrible to risk! If they try to surrender but will not make good, docile, and productive slaves, THEY MUST BE EXECUTED AT ONCE!

Next, I will channel the Medium Lobster:

YOUTH: Sarge?

SARGE: Yes kid?

YOUTH: Will we make it through the night?

SARGE: It's doubtful. The mortar fire we can stand. The sniping we can deal with. But those habeas corpus petitions... against them we have no defense.

YOUTH: But... But... But...

SARGE: I know, you want to know why we haven't worked out a defense. It's that damned Supreme Court. When I was a private we would simply shrug off such petitions--trap them in a gap in seisin, or simply shrug 'em off. But we can't do that anymore--we can't even claim that they have been improperly filed in the wrong jurisdiction. *Sob*

YOUTH: But... But... At least we can die like men.

SARGE: I'm afraid not, kid. It's not a clean death. Buried beneath dusty precedents, researching which writs ran in the Duchy of Lancaster and on the islands of Guernsey and Sark. Trying to disarm the copies of Blackstone's Commentaries diabolically hidden...


UPDATE: Nadezhda, Chair of the Medium Lobster Fan Club, points out that there is no reason to resort to Fa(ux)fblog, because the real Medium Lobster is on the case:

Fafblog! the whole worlds only source for Fafblog.: As the President argued when he began the War For Civilization, America cannot allow basic constitutional protections to its enemies - or its suspected enemies, or potential allies and relatives of its suspected enemies - lest they "use the forums of liberty to destroy liberty itself." Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. America's one hope is to make certain that Freedom never falls into the wrong hands by curbing Freedom proliferation throughout the globe.

Posted by DeLong at June 29, 2004 07:25 PM | TrackBack | | Other weblogs commenting on this post
Comments

You've certainly captured Giblets and the Lobsterman well, not to mention made Volokh look VERY foolish.

Posted by: Rebecca Allen, PhD on June 29, 2004 07:33 PM

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This would be more credible, if the Clinton administrtion hadn't argued to the Supreme Court that the burden of a single sexual harassment lawsuit on the Executive branch would be intolerable.

Posted by: wsm on June 29, 2004 08:05 PM

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I say we turn this into our advantage. This could provide a short term economic boost. Let's demand that they submit the petitions on, say Halliburton brand paper, with a list of acceptable printers and software. This could be the boost that American industry needs. In fact, we might be able to view Scalia's vote on the most recent round of Supremo cases as simply luring all those Gitmo guys (and maybe even the Abu Gharib folks) into filing by giving them the faintest of hopes and then slamming the door shut. Too bad Clarence didn't read the memo...

Posted by: liberal japonicus on June 29, 2004 08:15 PM

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Well, FWIW, some attorneys did say in the wake of the decision they would file "hundreds" of habeas petitions.

Posted by: Ugh on June 29, 2004 08:22 PM

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Ugh-lawyers never miss an opportunity. They have to eat too.
Man, do they eat.

Posted by: calmo on June 29, 2004 08:31 PM

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I must admit that I was quite stunned with Mr Volokh's hypothetical worries. I thought the whole point of a legal system is to presume innocent until proven guilty. Prof Volokh, given that he is supposed to be a legal luminary, seems to think that the paperwork that may be generated due to this principle is too much of a burden. I am a foreign citizen, and I could very easily think of the contrary worst case-for example, there is a country X with a prominent chap Y, who is inconvenient to the U.S because he is blocking some important trade agreement that the US is trying to push down the throat of his country. The US has sufficient presence to be able to kidnap him and put him in gitmo or some place of this kind. If one takes Prof Volokh's worries seriously enough to deny the right of habeas corpus, such a person will not have any access to justice. The US Supreme Court has made this scenario a lot less likely, and I think it is a very sensible judgement, contra Prof Volokh the legal eagle.

Posted by: v on June 29, 2004 08:33 PM

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Perhaps the good professor has never been sued, otherwise he would have a less cavalier attitude towards the energy absorbed by even frivolous litigation. (We could arrange a little demonstration here.) The US prison population knows this all too well, filing carloads of frivolous habeas corpus and other petitions. One petition prayed for peanut butter relief. It seems the prisoners were only getting smooth not chunky peanut butter. If Volokh’s scenario should come to pass, we can pay for theked al expenses by cutting his department’s budget.

Posted by: A. Zarkov on June 29, 2004 08:42 PM

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As I understand it, the "due process" the Supreme Court envisions requires a detainee to show that he is not an "unlawful combatant". That's a very different thing than requiring a full-scale normal criminal trial for every prisoner...

Posted by: Brad DeLong on June 29, 2004 09:04 PM

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Right. And the arguments that the SCOTUS ruling means that the US would be unable to keep someone like Zaqarwi are equally ludicrous. Anyone who cuts the heads off of prisoners in front of TV cameras can be charged with murder or at the very least war crimes in violation of the Geneva Convention. So maybe he could not be held just because the president said but he could certainly be held for a host of other reasons.

Posted by: bakho on June 29, 2004 09:10 PM

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Rebecca Allen, PhD, writes:
>
> You've certainly captured Giblets and the Lobsterman well, not
> to mention made Volokh look VERY foolish.

Eh, I think he missed a coupla obvious Giblet hooks. The little things like:

"Bow down to Giblets, habeas corpus!"

and

"Giblets is NOT pleased".

Only funnier, of course.

As for the Medium Lobster, he alread weighed in on the habeas corpus thing, at least a little. (I'm thinking his piece entitled "Freedom: the single greatest threat to freedom.")

But anyway, I'm now suffering from spleen damage after having read "the decline of british sea power", although I couldn't tell you why.

Posted by: Jonathan King on June 29, 2004 09:26 PM

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As I understant it, Padilla was in NY when his suit was filed by his NY-appointed lawyer.He was then transfered to SC so th suit was against the wrong person? Isn't Rummy the person in chrarge no matter where Padilla is in custody? Will the new suit be filed against the SC warden only to have the victim moved again? ad infinitum?

Posted by: Brian Boru on June 29, 2004 09:36 PM

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Padilla was (a) arrested in Chicago, (b) held in New York, and then (c) moved to South Carolina when the military got wind that the suit was about to be filed. The claim is that the suit has to be filed against the commandant of the prison. The fact (I believe) is that had the suit been filed in SC, the Court would have claimed that it should have been filed in NY. The point is to telegraph the fact that the Court is unhappy *without* ordering the immediate release of Padilla...

Posted by: Brad DeLong on June 29, 2004 09:51 PM

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"The US prison population knows this all too well, filing carloads of frivolous habeas corpus and other petitions."

So in other words the US can deal with roughly 2 million domestic prisoners filing frivolous petitions, but it couldn't deal with petitions from, according to Volokh's example, 50,000 POWs.

Someone help me understand why anyone bothers to read Volokh. The blog looked like a legalistic waste of time to me when I last checked it out, but I didn't realize it was so foolish as well.

Posted by: Ian Montgomerie on June 29, 2004 10:26 PM

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Congratulations on a well done Fa(ux)fblog. Now, however, the Medium Lobster himself has spoken, and we must harken to his word. True to his genius, the Medium Lobster has again deployed his uncanny vision-thing to uncover the profound threat to Freedom that neither you nor the esteemed Prof Volokh had the courage to imagine.

"[...] As the President argued when he began the War For Civilization, America cannot allow basic constitutional protections to its enemies - or its suspected enemies, or potential allies and relatives of its suspected enemies - lest they "use the forums of liberty to destroy liberty itself." Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. America's one hope is to make certain that Freedom never falls into the wrong hands by curbing Freedom proliferation throughout the globe. [...]"

Of course, the Medium Lobster does not leave us cringing helplessly in horror at the thought that THEY would use, as a weapon against US, the very reason why THEY HATE US. No, as only the Medium Lobster could do, he give us comfort that America and its President have the tools to defend us.

See "Freedom: The Greatest Threat to Freedom" at http://fafblog.blogspot.com/2004_06_27_fafblog_archive.html#108855830432918424

Posted by: nadezhda, Pres, Medium Lobster Fan Club on June 29, 2004 10:35 PM

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I am very afraid Brad Delong. Not only because you are suspiciously adept at channelin Giblets an the Medium Lobster but because what if our military is crippled by the surging mountain of paperwork? We have seen bomb wounds an amputees but what about carpal tunnel an papercuts? Oh no!

Posted by: fafnir on June 29, 2004 10:55 PM

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Sorry to rain on your parade but I do not think you understand the difference between upholding the peace and waging the war.

When you uphold the peace the vast majority of people did not commit any crime and have constitutional right of due process. That right is enforced by the impartial court, where the prosecution has to establish the proof that this given citizen committed the crime.

In war the presumption is that anyone on the enemy side is trying to kill or disarm and detain you. You in turn try to kill or disarm and detain them. No matter how creatively you read US Constitution, it provides no guarantees of due process for the enemy warriors.

Posted by: bubba on June 29, 2004 11:02 PM

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bubba: The problem you are so conveniently sidestepping is that we have nothing but the government's word that the people who are being detained are, in fact, 'enemy warriors'. If all it takes to make one an enemy combatant is the assertion of the Executive branch, where does this power of theirs end? May I be taken from my house, declared an enemy combatant, and detained indefinitely on the government's say-so? Or should I have the right to argue, before some neutral party, that I have been detained in error and should be set free?

Contrary to right-wing spin, the Supreme Court's recent decisions did not mandate that the alleged combatants be set free - merely that the detainees should have a chance to argue their innocence, and that the government must provide proof of their status as combatants.

Posted by: cyclopatra on June 29, 2004 11:17 PM

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Yay for the Medium Lobster! We are saved!

Huzzah!

Huzzah!

Huzzah!

Posted by: Brautigan on June 29, 2004 11:29 PM

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Maybe Volokh is joking, that would a better explanation than self-parody. I read M. Froomkin's analysis and I don't understand Volokh's concerns. I thought the court made an explicit exception for short to medium term detention of enemy combatants who might return to field of battle. And wasn't the court flexible on what constituted a hearing, or due process? And if the prisoners were obvious POWs taken on the field of battle, there would be lots of international law procedures that would provide hearings. I think he must have been joking, it is just too silly.

I can't resist saying a word about the wonderful benefits we are getting from these detentions -yes, its the wonderful world of torture and abuse!

Here are three articles by Darius Rejali, a prof coming out with a book on the use of torture by modern states. First says that torture doesn't work well and cannot be controlled. Second says that French success in Algiers was due to several other factors, rather than torture, and French use of torture in Algiers contributed to eventual loss in Algeria. Third says that what the US admin calls "abuse" is really torture and has been ever since the Gestapo, Soviets and assorted tyrants used the same techniques.

http://archive.salon.com/opinion/feature/2004/06/18/torture_1/index.html

http://archive.salon.com/opinion/feature/2004/06/21/torture_algiers/index.html

http://archive.salon.com/opinion/feature/2004/06/18/torture_methods/

I think this is the article in the NY Times that supports the third Rejali article above. The author points out that near drowning, sleep deprivation, degrading nudity, and stress positions have been favorite methods of torture during the inquisition, in Stalin's Soviet Union and Eastern Europe and assorted dictatorships around the world.
What's in a Word? Torture By Adam Hochschild May 23, 2004, Sunday

There have also been recent stories, one in the SF Chronicle, saying that there are reliability problems with some of the information gathered from some of the big fish prisoners using "abuse" (specifically "waterboarding"), which is also known as near drowning -in other words, torture. Some of the 9/11 commissions conclusions on OBL's plans are based on information gotten through torture and upon examination, there are problems with the reliability and inconsistencies in the information.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/06/17/MNGLU77EOA1.DTL

There is another story, that I have lost track of (I think it is in the NY Times) saying that some of the evidence of Iraq-OBL connection was extracted using torture from a big fish captive, and later was found to be inconsistent with other evidence and interrogations of other captives. When confronted with these inconsistencies, he recanted the stuff he said while being near drowned.

So we have:
1. Very severe damage to US image abroad that hurts war on terror for the long term
2. US Admin lies about abuse not being torture
3. Immorality and lawlessness by the US Administration while claiming to be the forces of right and justice
4. All for techniques that don't produce better information that other, more moral ones.

When we know there is an A-bomb, and we know it will go off in 24 hours, and we know we can disarm it with the information we could get from a jailed terrorist who we know knows where it was, and we know torture would get this information better than anything else -well, then OK lets have a debate. In the meantime, this whole thing stinks.

My belief is that the dirty and frightening secret is that the US administration ran to these extreme measures as a first (rather than last) recourse because they are incompetent, and simply do not know what else to do.

Posted by: jml on June 29, 2004 11:54 PM

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cyclopatra: The problem you are so conveniently sidestepping is that we have nothing but the government's word that the people who are being detained are, in fact, 'enemy warriors'.

Are you US citizen? If you are, you are due some process thanks to the Constitution. Since US law on the subject was developed in the era of warring nation-states, it is framed in terms of allegiance. As a US citizen you owe your allegiance to the Republic. If you aid the enemy, you are a traitor. Since few US citizens ever turned traitors, it is framed as a crime - violation of law. Since it is a crime, the due process guarantee applies. When the Goverment tries to side-step that, Supreme Court slaps it (thanks, Scalia).

If you are not US citizen and have been captured abroad, US does not owe you any due process. If your goverment is US ally, you may be able to claim the rights established in your country's constitution - or have your country's diplomats negotiate with US on your behalf (like British). If your goverment is Taliban, sorry, make your vote count next time.

Posted by: bubba on June 30, 2004 12:02 AM

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It is a lot more than the US Constitution. I saw the words 'Magna Carta' several times in the parts of the opinion that I read. Allowing people to be locked away in secrecy with no explanation or accontability, or an indeterminant period, on the say so of one person, is just inconsistent with any kind of modern democratic or republican tradition.

And remember the President has said that he doesn't have to explain anything that he says to anybody, because, apparently that is what being president means to him, it is a kind of, um, maximum leader type thing in his mind. Feel more comfy now?

And the Court was very flexible on what kind of hearing it could be. But there has to be something, sometime, somewhere. How can that be frightening to people?

Posted by: jml on June 30, 2004 12:12 AM

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“So in other words the US can deal with roughly 2 million domestic prisoners filing frivolous petitions, but it couldn't deal with petitions from, according to Volokh's example, 50,000 POWs.”

The US does not get 2 million petitions—not every prisoner petitions. But even thousands have proved so burdensome that now the number of habeas corpus petitions per prisoner is limited (I think to three).

Most everyone seems to think many thousands of petitions would not be burdensome, but we really can’t say that without knowing how this thing will evolve. Prior courts stayed away for this very reason. One day we might see a constitutional crisis when some president decides he has to defy the court in order to wage war. If that president has the backing of Congress then we will end up with a much diminished Supreme Court. They really have no power of enforcement.

Posted by: A. Zarkov on June 30, 2004 12:21 AM

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jml: And remember the President has said that he doesn't have to explain anything that he says to anybody, because, apparently that is what being president means to him, it is a kind of, um, maximum leader type thing in his mind. Feel more comfy now?

The Goverment is not a room service. You do not hire it - you pool a portion of your abilities with the other citizens so your goals (security, freedom, prosperity etc.) can be achieved. I absolutely agree that Bush is unfit to govern - and there is an established democractic way to remove him from power. The statement that I think some people in this forum (not necessary you) are trying to make - that US Goverment is unfit to govern in principle - implies that US is a tyranny. If one really feels that way (I do not), the logical course of action is armed resistance or flight - not sulking on the Web forum.

Posted by: bubba on June 30, 2004 12:44 AM

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You try to parody a paranoid-putz position, and conservatives still turn out to defend the purposefully ridiculous scenario. WTF is up with these guys?

The government needs to mandate anti-anxiety medication to all these hawks. Or give'em back their blankie.

I'd bet no one actually believes the US is facing some kind of existential threat - the hawks just like acting like tough guys, and kickin' ass, right? And the clever ones will justify anything, won't they?

Posted by: elliander on June 30, 2004 02:04 AM

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Prof. Volokh's premise is absurd: "Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments.... We capture 50,000 alleged enemy soldiers..."

The answer is simple. You treat the 50,000 as prisoners of war. It is only the US insistence on denying this to the Guantanamo detainees that has created the legal outcome Prof. Volokh decries.

Posted by: Dave L on June 30, 2004 02:57 AM

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I don't understand how Volokh even gets started on his hypothetical case. "Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments...."

Okay, so first, how is that like WWII? It's more like a bunch of Vietnams, insurgent forces in allied countries .. . but it's not, because it's not against national governments. What is it? If they are insurgencies, they are not against us. (Unless we took control of our allies, as in Iraq and Afghanistan, so it is against colonial authorities, or something.) Why are we taking them prisoner? Because they oppose our allies? But then our allied governments would hold them prisoner, officially. But Volokh calls it an insurgency and not against governments. Even Zarqawi is more clear about his goals.

And then Volokh says: "We capture 50,000 alleged enemy soldiers... the enemy forces have surrendered en masse... we detain them instead."

Did we "capture" them? Or did they "surrender" or were they "detained". Excuse me, I'm no lawyer but these are incredibly imprecise terms, and battlefield law comes with a good bit of precision. First, if 50,000 insurgents
"surrender" we actually won the war! Secondly, they would be classified as POWs, and the Geneva conventions kick in -- unless of course the White House then declares them not, only then giving them the opportunity , the invitation, to sue.

Like White House lawyers, Volokh seems to be postulating absurd what-ifs simply to justify violating the constitution. What he suggests is absolutely NOT "normal for large scale wars": capturing prisoners invokes the Geneva Conventions first. It only turns into US law when the White House and Attorney General unilaterally abrogate those conventions, which we are party to.

Posted by: paulo on June 30, 2004 06:07 AM

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Correction to above: I meant to say, "Excuse me, I'm no lawyer, but Volokh is being incredibly imprecise in using these different terms in the same line."

Posted by: paulo on June 30, 2004 06:11 AM

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Two words:

Maher Arar

Posted by: A Hermit on June 30, 2004 07:15 AM

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Oh, three more words:

Cheney yourself, Volokh...

Posted by: A Hermit on June 30, 2004 07:16 AM

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Anyone read the NYT article about the Nepali tourist thrown in jail with no cause except that he was videotaping street scenes out in public and happened to be near the FBI building? Stripped nude, kept in solitary, abused for 3 months - no legal recourse because he was a foreigner? This remind anyone else of stories from the former SSSR and present People's Republic?

And bubba, you're an ignorant retard who gies bubbas all over the world a bad name. The fact that you think the only options to a bad government are fight or flight, not discuss and negotiate and use other forms of pressure shows that you know nothing of history nor of other resistance movements around the world. The Phillippine people didn't have to do either to overthrow Marcos - who had, if you recall, all the US supplied weapons incl tanks on his side.

That kind of stupidity and binary thinking is why we're in this fix, in large part.

Posted by: bellatrys on June 30, 2004 07:31 AM

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Yes, let's not forget Maher Arar.

Not only are the administration's actions inconsistent with modern democratic and republican standards, they are inconsistent with early 13th century standards of justice. Any country knight of the 13th century understood how important habeas corpus was -- as we know from their use of and attachment to Magna Carta. Too bad well-paid lawyers are too dense to get it. Or so willing to give away these hard-won rights for other people.

Treat prisoners of war like prisoners of war -- another set of important standards evolved over centuries -- and the debate dissolves.

Posted by: sm on June 30, 2004 07:33 AM

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Ann Coulter couldn't make this stuff up.

Since we've recently discussed Ulysses Grant's Memoir, here's his opinion of the likes of the usual suspects here (he's commenting on being pressed by political necessity of attacking Vicksburg in disastrously inclement weather, to keep the newspapers from belittling the war effort):

"I always admired the South, as bad as I thought their cause, for the boldness with which they silenced all opposition and all croaking, by press or by individuals, within their control. War at all times...ought to be avoided, if possible with honor. But, once entered into, it is too much for human nature to tolerate an enemy within their ranks to give aid and comfort to the armies of the opposing section or nation."

Posted by: Patrick R. Sullivan on June 30, 2004 07:40 AM

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bubba gets my vote. Give him another go bellatrys.

Posted by: calmo on June 30, 2004 07:52 AM

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Sorry Prof DeLong, but the keyboard commandos at Little Green Footballs beat you to the punch. Once the Supreme's decision came down, they threw up a thread and had many commenters who posted that they were quite ready to go for the Mongol Horde Solution to POWs filing suit.

According to them, it's "Magna Carta be damned! We've got a war to fight!"

Posted by: Sharon on June 30, 2004 07:57 AM

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Careful, perfesser. We don't want the enemy getting their hands on a killer joke.

Remember when the Germans got their hands on British humour and developed the V-Joke? It was devastating.

Der ver zwei peanuts, valking down der strasse, and von vas... assaulted! peanut. Ho-ho-ho-ho.

Posted by: Sven on June 30, 2004 08:36 AM

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Patrick, would you like us to dig up some quotes from the late 30s and early 40s arguing that democracies could never prevail militarily against dictatorships because they would be crippled by opposition and croaking by press and by individuals? Because it sounds an awful lot like that's your position.

If you hate freedom and democracy, just go ahead and say so - no need for cryptic quotes from long-dead generals. Like this: "I, Patrick R. Sullivan, despise living in a nation where those who oppose my thoughts and preferred policies have the right to express that opposition." Doesn't that feel better just to say it out loud? I thought so.

Posted by: JRoth on June 30, 2004 08:38 AM

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bellatrys : And bubba, you're an ignorant retard who gies bubbas all over the world a bad name. And bubba, you're an ignorant retard who gies bubbas all over the world a bad name. The fact that you think the only options to a bad government are fight or flight, not discuss and negotiate and use other forms of pressure shows that you know nothing of history nor of other resistance movements around the world. The Phillippine people didn't have to do either to overthrow Marcos - who had, if you recall, all the US supplied weapons incl tanks on his side.

And you bravely fight the excesses of bad goverment by throwing pathetic insults in the Web forum. Tyranny (like the Soviets or Saddam) does not debate and negotiate with you - unless you are US Predsident and have US Armed Forces behind your back. As for Marcos, he was overthrown in "peaceful civilian-military uprising" (http://www.nationmaster.com/encyclopedia/History-of-the-Philippines) . His opponents were willing to risk their lives to overthrow him. If they kept on debating and negotiating on the Web, he might well be in power still.

Posted by: bubba on June 30, 2004 09:27 AM

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Loved your post. I think I detect some fafblog envy. I feel it too.

Seriously I think the key bit was;...Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments....

Thats not WWII, thats an Empire in a state of rebellion. I think our subject peoples are entitled to at least a 13th century standard of protection. :)

Posted by: Frank on June 30, 2004 09:31 AM

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JROTH:

I think you're mistaking Patrick's message. He's quoting Grant, but not approvingly. There are many Americans who do not think Grant was a great President, and so would not use a quote from him as a real argument. Note his bit about Anmn Coulter (anyone who laughs at Coulter can't be all bad).

Beyond that, could Mr. Volokh explain how al-Qaida would have, oh 50,000 people to spare? 50,000 to have surrender, and possibly be pumped (legally or illegally) for information on al-Qaida? If he were an enemy general, and he proposed this course of action, he would not be a general for much longer. My guess is, they'd bust him down to private and have him on KP till doomsday.

Posted by: Padraig on June 30, 2004 09:42 AM

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bubba: If you are not US citizen and have been captured abroad, US does not owe you any due process.

uh... no. not even close. try again.

sorry to burst your bubba-bubble, but US law explicitly includes the Geneva Conventions, which in turn include some rather specific language regarding due process in armed conflicts.

Posted by: radish on June 30, 2004 10:34 AM

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If you are not US citizen and have been captured abroad, US does not owe you any due process.

not according to yesterday's SCOTUS ruling. They said prisoners at GITMO have a right to be heard in court. Yes, our SCOTUS.

Posted by: flatulus on June 30, 2004 10:42 AM

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I don't think Volokh was joking or self-parodying. My reaction to that argument (and he made it a while back as well) is pretty much the same as Brad's.

I think Volokh is very, very smart, and I read him as regularly as I read Brad, but he's still human, and I think he simply doesn't like the way the political wind is blowing right now, so he's reduced to grasping at straws to defend this administration. Just like his post on why he's not writing about the torture memos.

Posted by: fling93 on June 30, 2004 11:46 AM

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radish: sorry to burst your bubba-bubble, but US law explicitly includes the Geneva Conventions, which in turn include some rather specific language regarding due process in armed conflicts.

Sorry you have to resort to childish antics but Geneva Conventions (see for example http://www.unhchr.ch/html/menu3/b/91.htm) does not have a provision for people who hide among the civilian population and are suspected of committing terrorist acts upon it.

Posted by: bubba on June 30, 2004 11:56 AM

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Is there a time limit? Or we could merely lose some of the prisoners, like Rumsfeld has done, and only let them appear in small drips and drabs and that way keep the number of Habeous Corpus filings under control.

Or we could be more selective as to who we actually detain and for how long we detain them.

Posted by: Karl on June 30, 2004 12:49 PM

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flatulus: They said prisoners at GITMO have a right to be heard in court. Yes, our SCOTUS.

I think Scalia was right when he said that in essence the court is establishing the principle 'where American might comes - so do American rights'. Applying that principle to people who have no allegiance to the US is completely outside of the concept of the nation-state. On a lighter note, should they be able to apply for SSI? Saddam is rich - should we demand that he pays taxes? Making him fill 1040 may be the ultimate indignity.

Posted by: bubba on June 30, 2004 01:03 PM

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"As I understant it, Padilla was in NY when his suit was filed by his NY-appointed lawyer.He was then transfered to SC so th suit was against the wrong person? Isn't Rummy the person in chrarge no matter where Padilla is in custody?" - Brian Boru

Monk v. Secretary of the Navy is controlling here; a habeas petition must be directed to the person who has "day to day control" over the petitioner. Ex parte Endo held that, should the petitioner be moved after a filing of a petition to a new location where the court would not normally have jurisdiction, the court retains jurisdiction over the case (functionally, to both allow the petition to move forward and to prevent "forum shopping" by the detainers).

There is a countervailing case -- don't have the cite handy right now, but I can look it up in my notes -- that allows the naming of (IIRC) SecDef as the respondent if the whereabouts of the petitioner are unknown.

In this case, there were three respondents named in the habeas petition: the President, SecDef, and CMDR Melanie Marr, commander of the naval brig Padilla was moved to. However, the petition was filed in New York after Padilla was moved, so there was no chance for the court to exercise Endo jurisdiction over the case. Thus, counsel simply screwed up and filed in the wrong jurisdiction, either due to a flaw in their understanding of the case law, or because they were unaware Padilla had been moved at the time of filing.

Posted by: WatchfulBabbler on June 30, 2004 01:36 PM

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Okay, I think I got it. If we destroy liberty, it's a victory for ... liberty ... whereas if the terrorists destroy liberty it's a victory for the dastardly terrorists, so, we must destroy liberty first before the terrorists have a chance to get to it and turn it against us and destroy liberty! Yes, that's much clearer. Then again, perhaps Eugene should have stuck to skill/gimick rallies when he had a chance.

Posted by: Ulrika on June 30, 2004 01:55 PM

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bubba: does not have a provision for people who hide among the civilian population and are suspected of committing terrorist acts upon it.

uh... no.

that would be like if the fifth amendment only applied to people who are actually guilty. oh, wait...

what, you want details? 3rd GC Art V states that "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."

hey I think I've seen this movie before! spoiler: first you're going to suggest an interpretation of that article as meaning that an HCP can unilaterally claim that there is no "doubt" and therefore no protection. I point you at various bits of (IIRC) Part III Section V and eventually Part V, which contradict that interpretation. you go off and do a little research and come back to tell me that the people you're talking about are all dirty rotten spies, and therefore 4th GC Art V is the one that counts. I point out that overt belligerents are eligible under the 3rd GC and that the intent of the 4th GC is pretty clearly that you can't simply scoop people off the street and call them spies. you either stalk off in a huff or insist that the 4th GC does not in fact forbid simply scooping people off the street and call them spies. I guess that means you win.

*sigh*

Posted by: radish on June 30, 2004 06:22 PM

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radish:

Uh, me simple. Me knows not your funny logics. Me knows however that pretending to be non-combatant and committing acts of terror against the civilians places one outside of realm of GC. However as flatulus pointed out the question is moot since Supreme Court decided that this particular right of US citizens (judicial review) should be extended to foreigners captured and held abroad. It may be to the best (nobody really wants those people kept without charges forever) however I do wait breathlessly for the first peanut butter lawsuit from Gitmo.

Posted by: bubba on June 30, 2004 08:42 PM

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Delicious -would that be from those with life threatening peanut allergies or those that prefer the 100% Natural Smooth who are getting the Chunky ( oh Horror!)instead?

Posted by: calmo on July 1, 2004 07:36 AM

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My sincere apologies to Patrick if I did, in fact, misinterpret his meaning; I read it a couple times, and took the Grant quote as a favorable one (I know he's not the most well-loved president).

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