The Volokh Conspiracy

Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." Under the proposal that the US Senate is poised to adopt the executive branch will not be answerable to any court anywhere for indefinitely detaining such people (much less subjecting them to "alternative interrogation procedures"). Don't you lawyers have anything at all to say about this? Any opinions at all?

If you had said "Congress THNKS US citizens imagine..." I might be willing to buy it. The average citizen had no say in whether that bill passed (they get to speak in November), and I doubt the average citizen knows more than what the NYT has told them about the "domestic surveillance" program.

You're right on one point though... sad.

I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States."

Yeah. EV can post all he wants about "just because we ignore the subject doesn't mean we don't care," but it wears a little thin sometimes.

However, I think Frances makes the same mistake I did: U.S. citizens can be declared "enemy combatants," but only alien enemy combatants can have habeas stripped. Still very bad, but not blatantly unconstitutional like I first thought it was. Though I've seen some arguments that the Great Writ at common law ran even for aliens on English soil.

I agree with Frances, Anderson, and Commenterlein. The lack of comment is amazing.

Yes, bloggers can post on whatever they like, but for a blog concerned with constitutional issues and individual liberties to remain essentially silent on these topics is quite remarkable.

Apparently, the prospect of the US torturing detainees, and keeping innocent people detained indefinitely with no recourse, on the President's say-so, troubles the Conspirators less than some vague statements by the UN on gun ownership.

I have to say that I was somewhat surprised, too, that there haven't been more blogging at VC about the "detainee" issues.

Not to pile on, but I too have been surprised by the lack of commentary on these issues by VC bloggers. I appreciate that Orin Kerr has at least fostered discussion in the comments by posting links (without commentary) to press reports, but even he seems reticent to post his thoughts on the subject.

Of course, it's anyone's right to speak about or remain silent about any particular issues, but the silence on these issues does seem peculiar. I keep checking in here for some reasoned analysis on the legal issues (as opposed to the partisan rants one can find on the purely political blogs) and am continually disappointed.

I guess the best way to put it is that I hereby humbly request some substantive blogging about the pending detainee and interrogation bills from the VC. I respect your views, and wish you would share them with your readers.

Anon. Lib. - principled conservatives have been distancing themselves from the dimwitted theocon brand of "conservatism" for some time.

EV posted (somewhat testily) in another thread that he believed that VC's lack of posts on this subject was due to lack of expertise by many of VC's bloggers.

That may be so, but one hopes that legal academics might take an interest in the destruction of the most basic right of citizenship - the right NOT to be held indefinitely without charges or review. Not quite as sexy or interesting as putative loss of woodpecker habitat, I suppose.

No mincing words there... someone has no clue what they're talking about.

The *bill* isn't limited to non-citizens; the question is whether the *habeas-stripping* extends to U.S. citizens.

Hilzoy at ObWi elucidates the known unknowns. And I'm hoping to see some clarification from Jack Balkin or Marty Lederman.

Mr. Chapman, if you'll click the link to Hilzoy's comment, you'll see the problem as she framed it. But allow me to cut-n-paste:

I think there are two distinct issues. One: can the President detain any enemy combatant indefinitely? If so, then it's hugely important that the definition of 'enemy combatant' that these idiots are proposing to write into law with the barest gesture at debate is so vague and capacious, and one part of that is: it's important that it includes citizens. (Myself, I don't see the fact that 'enemy combatants' includes citizens as itself the bad part; it's what we do with that designation that makes it bad. But surely a citizen can be an enemy combatant. Think John Walker Lindh.)

Two: does the habeas-stripping part, in particular, apply to citizens, or only to aliens? This is my question. But Marty's clarification covers (1), not (2), while Jack Balkin, Kevin Drum, and others assert (2) that citizens could have their habeas rights stripped.

Now, all apologies, I've contributed to the murk by using "habeas-stripping" as a synonym for "indefinite detention at the Executive's pleasure" ... though for the life of me, I can't really tell the material difference between 'em.

the "habeas stripping" only applies to aliens.

As stated in Section 7 of the draft bill.

Anon. Lib. later said that it applies to US citizens as well.

Well, no. Here's what Anon said, and you quoted:

unreviewable discretion to indefinitely detain anyone (the bill is not limited to non-citizens) and torture them

Nothing about "habeas," just "indefinite detention."

Now, you would think the two were the same, right? As I myself suggested. Hilzoy's comment, which I first linked and then quoted, explains the possible difference.

Are you trying to say that it's still an open question whether US citizens can be "habeas-stripped" under the bill? If so, why not just come out and say it?

Didn't I?

the question is whether the *habeas-stripping* extends to U.S. citizens.

Hilzoy at ObWi elucidates the known unknowns. And I'm hoping to see some clarification from Jack Balkin or Marty Lederman.

I appreciate that you may not have time to actually *read* people's comments, but then, perhaps you shouldn't take the time to comment on them, either?

I think I gave your posts more attention than they deserved, honestly. Stop being a jackass.

Hey, can I borrow that?

Just a technical question -- how does one go about proving citizenship when your habeas has been stripped?

[Crickets chirping.]

I've spent about 4 hours today trying to answer for myself the question of whether an American citizen can be declared a enemy combatant and stripped of habeas rights.

I haven't been able to find an answer. Apparently the bill is undergoing constant amendment and there are multiple, competing versions of it out there.

In any event, the answer to that question won't help people like Maher Arar - that is innocent people who have undergone months of torture by our government. (And, yes, I know he was actually tortured in another country, but the blood is on our American hands.)

Just to clarify my earlier comment. In connection to the indefinite detention of citizens, I was referring to the broad discretion granted to the executive to designate anyone as an unlawful enemy combatant based on criteria the administration selects. Such a designation gives the president authority---pursuant to his commander in chief powers during wartime---to detain a designee indefinitely. A citizen could bring a habeas claim but he would be almost certain to lose because the administration has discretion to determine the criteria for his detention and the petitioner would have to show that the administration misapplied, ignored their own rules (about which their interpretation is accorded significant deference), or that the criteria are so ridiculous as to be an abuse of discretion. I am basically following the argument made by Marty Lederman on balkinization earlier today.

Anyway, it strikes me that the discussion on this thread of whether or not the statute strips citizens of the right to bring a habeas claim is a little beside the point. That detail does not make or break the advisability or the morality of this legislation. Indeed, it is not even close. Lets not let the trees distract us. The bill is monstrous, it is being pushed by a supposedly "conservative" administration and its party allies, and abetted by cowardly "liberals". Everyone who cares about individual dignity and the rule of law should make their opinion known---irregardless of whether or not they are "experts." This is a very important issue and it is not one that is difficult---even for a lawyer---to understand.

I find this site.... neat in that there legal commentaries about various legal ssues. If no one has anything to say, at least you can read what some legal experts have to say.

The bill has now been altered to strip (non-citizen) legal residents of the US of their habeas rights.

Let us hear no more about how Republicans and conservatives are suspicious of government power. The bill is plainly monstrous, as Anon Lib terms it, yet it has widespread support on the right.

Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.

What conclusions can we draw from this remarkable acquiescence - which we can reasonably assume - by law professors, some of them experts in Constitutional law, to arbitrary, indefinite, and unchallengeable detentions?

Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.

Byomtov hits the nail on the head.