The Volokh Conspiracy

In a post below, I describe this scenario:

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. . . . 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.

A couple of readers ask: If the result is so burdensome, why can't Congress just avoid it by suspending habeas corpus? Consider it a little constitutional law puzzle.

For the answer, click here.

Right on Race, founded by Tom Wood — the coauthor of Prop. 209 — and with posts by Roger Clegg (Center for Equal Opportunity), Todd Gaziano (Heritage Foundation), John Rosenberg (the Discriminations blog), and Tom himself. It also has an Open Forum section for reader submissions, which appears to be moderated (a good move, I think).

Sounds like a very interesting new resource, with some really first-rate contributors; check it out.

I've blogged below about one aspect of the Guantanamo detainees case; but here's the bigger picture: 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. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they're captured. 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 (not everyone would have to know how to do that — there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.

Now there are three possible responses to this:

First, one can argue that, sure, this would be very expensive and burdensome, but that's the price we pay for justice. But I don't see any reason why this is a necessary price — one that the Constitution or an Act of Congress requires us to pay. In war, there is always the risk of injustice; innocents even unfortunately die, with no legal process for every bombing or attack to decrease that danger. It seems to me that people on the field of battle must run the risk of being erroneously detained as well as being erroneously killed. The constraints to that have traditionally been moral and political, not judicial; I see no reason why this should change.

Second, one can argue that there's really no such burden, since the military can always avoid habeas review of detentions just by keeping people outside Guantanamo, in places where the U.S. government has less complete control (for instance, on a base leased from a friendly country, which at least has the power to kick us out when it wants to). But what's the point of that? And beyond that, as I argue below, it isn't even clear under the Court's decision that this would indeed be enough to avoid the Court's judgment.

Third, one can argue that the military can avoid habeas review of detentions just by providing them with some modest "access to [a] tribunal" — for instance, a brief hearing before a military tribunal, such as that contemplated by article V of the Geneva Convention. This might indeed be a much lesser burden on the military, since it may involve only a brief hearing by military officers with highly truncated rules of evidence. And the military may often engage in such hearings in any case.

This would be the best spin that could be put on the Court's decision. But from the Court's opinion, it isn't clear whether such hearings would be sufficient (since they seem to be just one factor out of four). Even if they are, it isn't clear what sort of military process is sufficient to avoid any need for civilian review (which is what the writ of habeas corpus contemplates). And if they can be highly truncated, it isn't clear how much of a benefit they really will provide to anyone.

Finally, one can say that that is a different case, and we shouldn't let hypotheticals involving 50,000 detainees affect the judgment in a case involving several hundred detainees. But can entitlements on habeas corpus, which are individual rights, really turn on that? "If you're one of up to X detainees, you have an individual right to habeas corpus; but once more than X people are detained, you lose that right" — I can imagine the Congress enacting such a statute, but it would be a mighty odd rule for a court to come up with on its own.

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.

UPDATE: Will Baude at Crescat Sententia responds. I don't think his analogy is quite right -- the right to trial for civilian crimes is very clearly established; the question here is whether we should in the first place recognize a novel right to civilian review of military detention of aliens captured overseas. Still, I thought it would be helpful to link to the argument.

In Rasul v. Bush today, the Court held that the Guantanamo detainees are entitled to have their detention reviewed, presumably by civilian courts, even though they're not U.S. citizens, and they're being held outside the U.S. Johnson v. Eisentrager, a 1950 case involving a similar petition brought by detained Nazi soldiers, seemed to hold the contrary -- but the Court distinguished Johnson on four grounds:

1. "[The Guantanamo detainees] are not nationals of countries at war with the United States." (In Eisentrager, the Court concluded that peace had not been officially declared.)

2. "[T]hey deny that they have engaged in or plotted acts of aggression against the United States."

3. "[T]hey have never been afforded to any tribunal [even a military one, as in Eisentrager], much less charged with and convicted of wrongdoing."

4. "[T]hey have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

A big part of the Court's decision focused on the fourth item -- but as Justice Scalia argues, the government's "exlusive jurisdiction and control" over Guantanamo isn't really that different from the government's exclusive jurisdiction and control over occupied Germany. Guantanamo has been controlled by the U.S. longer than German bases were (I suspect that today Germany has more legal authority over U.S. bases in Germany -- certainly it has more de facto authority, since if the Germans wanted to kick us out, we'd surely go, whereas we're not leaving Guantanamo even though Castro does want us out). But it's hard to see why that should make a difference.

But even if the fourth item is a possible ground for distinguishing Rasul from Eisentrager, the Court doesn't (unless I've missed something) explain whether exclusive jurisdiction and control is necessary for habeas, sufficient for habeas, or particularly important for habeas. What if the detainees had been kept in Afghanistan instead, or at a military base in no-longer-occupied Germany? I don't see how one can figure out from the Court's opinion whether they would then be entitled to petition the civilian courts for hearings. And the government does want to know this, since it wants to know where they should be kept.

Judge Richard Posner and Vicki Jackson square off in Legal Affairs.

Prof. Steven Taylor (PoliBlog) is running this, and it seems like a worthy project:

I have volunteered to help Dr. Safaa al-Hamdani, a biology professor at Jacksonville State University (another school here in Alabama) in a book drive to collect texts to help populate the Baghdad University library, which, between post-war looting and multi-decade neglect by the Saddam regime is in serious need of help.

While I am focusing my efforts on my university, and other schools in Alabama with which I have contact, I thought a note to the Blogosphere wouldn't hurt.

While books from any discipline are welcome, Dr. al-Hamdani notes that there is a special need for science, math and medical texts. Also, he asks that books no older than five years be collected, as given the cost of shipping we want to make sure we are sending usable books. Also, funds to help ship the books are also in need.

If you can help, please [email me at the address given] here.

If you are able to help, books or donations could be sent directly to me.

There is a brief news story about the book drive here.

Well, it turns out that the Moore/Letterman exchange I mentioned last week is indeed apparently fictional. (As I mentioned in the original post, "Don't know if it's true, and I won't assume that it is. But it's at least a good joke.") Nathan Florea says he has a more accurate transcript, which is very different, and he points to a file containing the relevant clip.

I couldn't get the file to work for me -- I saw the video, but not the audio, and I don't read lips much. But, especially given my original skepticism about the original version, I suspect that Mr. Florea is right. Another beautiful story ruined by ugly fact . . . .

alleged to have been fighting for al Qaeda or the Taliban? That was one of the issues in Hamdi and in Padilla.

A federal law, 18 U.S.C. 4001(a), says "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Padilla and Hamdi argued that as a result they couldn't be detained unless they were accused of having violated some federal criminal statute.

Not so, the government argued, the post-September 11 Authorization for Use of Military Force authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Such "necessray and appropriate force," the government reasoned, includes the power to detain enemy combatants, as well as the power to shoot them on the battlefield -- military force has always been understood to include the power of military detention.

Five of the Justices in Hamdi -- Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in the plurality, plus Justice Thomas in his dissenting opinion -- took the view that the Authorization allowed military detention at least of citizens who are "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." That's why Hamdi lost on the statutory question.

But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.

And in Padilla, which was disposed of on procedural grounds, Justice Stevens's dissent said, in footnote 8, that "I believe that the Non-Detention Act . . . prohibits -- and the Authorization for Use of Military Force Joint Resolution . . ., does not authorize -- the protracted, incommunicado detention of American citizens arrested in the United States." And the dissent was joined by Justices Souter, Ginsburg, and Breyer, who was in the plurality in Hamdi. So it sounds like five Justices think that Padilla should win on this statutory issue.

Now there is some question as to whether the five Justices' view of the 4001(a)/Authorization interplay in Hamdi is binding precedent. Lakewood v. Plain Dealer Publishing, 486 U.S. 750, 764 n.9 (1988), says that "when no single rationale commands a majority, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgmen[t] on the narrowest grounds,'" and seems to reject the notion that one can add up votes from the plurality and the dissent. On the other hand, I suspect that lower courts will conclude that the five Justices' views are indeed binding on them.

On the other hand, I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla -- I assume that Padilla can refile his case in the proper district, and thus avoid the procedural problem that led the Court to reject his claim -- lower courts would be free to conclude that Padilla loses on the 4001/Authorization question. What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell, especially given that it could take years (assuming Padilla continues to be detained for that long), and some of the Justices might retire by then.

Note that Justices Scalia and Thomas are about as far apart as possible in the Hamdi case. Justice Scalia would say that the military essentially has no power to detain citizens, except when Congress suspends habeas corpus, or when the citizens are promptly tried through the civilian criminal system. Justice Thomas would say that the President has very broad, nearly unreviewable, power in this situation.

This is just further evidence that 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 — consider his opinions on the scope of the Commerce Clause, the scope of the Ex Post Facto Clause, the protections offered to anonymous speech, the Excessive Fines Clause, crossburning, and more.

In many cases, of course, the two agree: They were appointed, after all, by conservative Presidents, and come from the same conservative legal movement. We should be no more surprised by this agreement than by, say, Justice Brennan's and Justice Marshall's frequent agreement.

But cases 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. Many people will of course disagree with his decisions, either the separate ones or the ones on which he joins Justice Scalia (or vice versa). But they should disagree on the merits, rather than by casting aspersions on his ability or willingness to think independently.

See here for Larry Solum's summary and roundup of reactions.

Unless plans change, I should be on (1) Warren Olney's To The Point radio show today (see here for the station list and times), and on (2) the Abrams Report (MSNBC). I should be talking about the Guantanamo cases, Hamdi, and Padilla on both shows.

Note that TV networks often cancel such interviews at the last minute, which is why I say "unless plans change."

UPDATE: MSNBC did indeed cancel -- that's the TV biz for you.

Marty Lederman, a very knowledgeable lawyer and Court-watcher, posts his thoughts at SCOTUSBlog.

I've only read the Hamdi case so far, but here's a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.

This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.

But many such people may find it hard to argue these positions within their own movements, because (1) they may themselves be unsure of their positions, and (2) it's always hard to argue to one's friends something that seems like it's supporting "the other side." I'm not speaking here of fear of professional retaliation or such things — I'm speaking of the natural and often laudable human tendency to question one's own views when they contradict those that are held by people one likes and respects, and of the natural human tendency not alienate one's friends by seeming to join their political enemies. The tendency is only a tendency; many conservatives have disagreed with some of the Administration's actions in this field, and many liberals have agreed with the Administration. But I suspect that some in both camps have been reluctant to do so, for the reasons I note.

In such situations, having allies that are authoritative within one's own movement can greatly embolden dissenters within those movements. It's much harder for conservatives to harshly criticize fellow conservatives for adopting a position that Justice Scalia has adopted. A conservative who quietly holds such seemingly "liberal" views would thus be reinforced in those views, and emboldened to voice them. Many of his fellow conservatives will still disagree with him; but he'll suspect that the disagreement will be more cordial, and less firm, if he can enlist Justice Scalia on his side.

Likewise, I suspect, for many liberals who can enlist Justice Breyer on their side. Breyer is probably not as liberal on constitutional issues as Justice Scalia is conservative (though that's of course hard to measure). I also suspect that he's not as important to liberals as Justice Scalia, who has long been one of the leaders of the conservative legal movement, is to conservatives. Still, his votes on race preferences, on federalism, on many (though not all) criminal justice cases, on many (though not all) church-state cases, and in other fields make him quite respected by most liberals. So a liberal lawyer will thus feel more comfortable making at least mildly pro-Administration arguments (recall that Justice Breyer voted partly for the Administration and partly against it here) when he can point to Justice Breyer's vote.

Again, I stress that I'm talking here just of factors that may influence how firmly people hold their views, and how vocal they are about those views — they're unlikely to vastly sway large groups of people (in part because most liberals voted against Justice Breyer's views, and most conservatives voted against Justice Scalia's). Furthermore, I'm speaking here only of effects in legal or policymaking circles; I'm not sure how much the public at large is influenced by Justice Breyer's or Justice Scalia's views.

But these are important circles. It matters how often conservatives are willing to make arguments skeptical of military power to other conservatives, and how often liberals are willing to make arguments that support military powers to other liberals. And I think that Justice Scalia's and Justice Breyer's votes will indeed affect the frequency of such intramovement arguments — arguments that I think are on balance good, both for the country and (at least in the medium and long run) the movement — and thus have significant extralegal effects as well as purely doctrinal ones.

Off to pick up the printouts.

wasn't announced today, I'm told; that means it'll come down later this week. Likewise for Alvarez-Machain, the foreign torts case.

which is to say that they are entitled to a civilian court's hearing their habeas petitions. I say "apparently" because I haven't yet read the opinion; will blog more as I read it. I'm pretty shocked by the result, but I may be less shocked when I read the details.

Today's L.A. Times story about Sam Raimi, the director of Spiderman and Spiderman 2, started with these paragraphs:

Most of the furnishings in Sam Raimi's office on the Columbia lot seem accidental -- things that have survived the siege of finishing "Spider-Man 2." There's the big monitor on a cart stuffed with playback devices, the tinfoil taped to the windows to keep sunlight (and inquiring eyes?) out, the well-worn couch and coffee table. But what fills the wall behind his desk is clearly no accident -- an American flag that's about as long as Raimi, at 5 feet 9 inches, is tall.

Since Hollywood is a part of our nation where the "stars and bars" in most directors' lives are not hung on the wall, and given that the very last images of his film feature a pair of such flags waving in the breeze after his hero has created them on a typical web-slinging swing down a Manhattan avenue, the question seems inevitable: What do the flags mean to Raimi? . . .

Now, as best I can tell, the only standard meaning of "stars and bars" is the first Confederate flag (thanks to Wikipedia for the image):

A few dictionary checks (for instance, one through dictionary.com) confirmed that this is the only standard meaning of "stars and bars." Am I missing some deep joke or reference here? Or did the author just err?

I mention this because I think this minor error (if error it is) is relevant to a broader point I'd like to make about writing; but before I build too much on this, I'd like to make sure that it is indeed an error. So if you have a plausible explanation for why the story might be right after all, please let me know at volokh at law.ucla.edu.

from the Interactive Citation Workstation. I checked out the Bluebook exercises, and they look like a pretty good tool for Bluebooking practice. There are also exercises that teach the ALWD Citation Manual. Both seem to be free to LEXIS student users.

If any of you can recommend other free online resources for this, please let me know. Also, if you have had bad experiences with the ICW exercises, please let me know as well. I plan on recommending these (and others) in a future edition of my Academic Legal Writing book, and I want to make sure that they're worth recommending. So far they seem pretty helpful.

There's been a lot of discussion about the implications of Blakely v. Washington (decided last Thursday) for various sentencing schemes; I have nothing to add to that. But I did want to flag one issue: What does Justice Scalia's opinion suggest about nonunanimous and less-than-12-member criminal juries?

When most people think of the right to trial by criminal jury, I suspect they think of unanimous 12-member juries. But the Supreme Court has held that the constitution generally does not require either a 12-member jury, or that the 12-member jury be unanimous. (Smaller 6-member juries do have to be unanimous.) Oddly, the unanimity requirement has been applied to federal juries, because of a one-Justice concurrence by Justice Powell in the early 1970s. (This is one of the few ways in which the Bill of Rights has been applied differently to states via the Fourteenth Amendment than to the federal government.) For the key cases on this, see Apodaca v. Oregon, Johnson v. Louisiana, and Williams v. Florida; the nonunanimous jury cases were 5-4 (Justices Douglas, Brennan, Stewart, and Marshall dissenting), and the less-than-12-member jury case was 8-1 (Justice Marshall dissenting). In practice, as I understand it, the unanimity requirement is the norm in nearly all states, and most states use twelve-member juries (at least in fairly serious cases). But according to the Court's precedents, that's not a constitutional command.

Justice Scalia's majority opinion in Blakely, though, twice quotes Sir William Blackstone's 1765 formulation of the jury trial right as providing for "the unanimous suffrage of twelve of his equals and neighbours." Both times, the opinion mentions this while discussing what the Jury Trial Clause of the Sixth Amendment (incorporated against the states via the Fourteenth Amendment) commands.

Now the Court is of course only talking about the scope of the jury trial guarantee -- the extent to which it applies to sentencing factors -- and not the size or voting requirements of the jury. Many or all of the Justices in the majority might not have seriously considered whether the "unanimous suffrage of twelve" requirement really should be a constitutional command.

Still, the opinion, especially its references to Blackstone, does stress the importance of the guarantee's original meaning, and does take the view that the Sixth Amendment generally constitutionalizes the common-law jury trial right. This suggests that at least some Justices -- and perhaps a majority -- may be willing to revisit the nonunanimous jury issue (which, as I mentioned, was 5-4 when the Court decided the matter, and on which a change of course would affect only a few states) or even the jury size issue.

Incidentally, for whatever it's worth, at least one news account (by David Savage in the L.A. Times) also thought the unanimity reference was important, though without discussing the details I mention above.

Many thanks to Cass Sunstein, Glen Whitman, and Neal Whitman for guest-blogging while I was out of town — I much appreciated their posts, and I hope you did, too. Please check out Glen's and Neal's own blog, Agoraphilia. (I'd recommend Cass's blog, too, except he's one of the few law professors who still don't have one . . . .)

I got over 50 responses to my Jews and "Jewish People" post; I hope to post some brief thoughts on the subject Tuesday (though unfortunately I won't be able to respond individually to each message).

Several people also pointed out that the author of the Slate Kerryisms column has posted a response to various criticisms of the column, including my own criticisms. I'll blog about that Tuesday, too. The response was posted last Tuesday, but I was out of town at a conference from Wednesday to Friday, and thus couldn't react more promptly.

The Supreme Court will be announcing its decisions on Monday, including possibly the military detention cases (Hamdi and Padilla), the Guantanamo cases, and the latest cyberporn case (Ashcroft v. ACLU II), though it's possible that it will save some of these for later in the week. I hope to blog quite a bit about them Monday, which is why I'm saving the other items until Tuesday. (If the Court decides to announce some of the cases Tuesday, I'll bump the other stuff until Wednesday or later.)

InstaPundit has excerpts from some news articles on this. I think an apology was indeed warranted (see here and here).

But as I told the New York Sun reporter who first broke the story, I think this is all that can be done and all that needs to be done here. It would surely have been much better if Judge Calabresi hadn't made his statements; but now that they have been made, an apology is the only sensible remedy.

Some people say that he should recuse himself from various cases involving the Bush Administration, but I doubt that this is really called for: The statements didn't tell us more than we already know about many judges, which is that they really don't like George W. Bush -- if we recused all judges who had strong political sentiments from all politically charged cases, we wouldn't have a lot of judges left. Nor do I think that the comments were egregious enough to warrant some more formal reprimand from the court. The apology was thus both the right thing to do, and the tactically smart thing to do. You can accomplish a lot with a prompt apology.

Incidentally, if anyone has a pointer to a copy of the letter of apology, I'd love to post it; I doubt it has anything much more enlightening than what the newspapers say, but I think it's generally good to have the original documents as well as the media-filtered versions.