Glenn Greenwald has yet another post up defending his description of me as an apologist for lawless and radical Bush policies. As you might expect, it is highly dismissive: My arguments are a “transparent and ludicrous” straw man; I am ignorant; I am willfully distorting his views; I am just like John Yoo, etc. (That’s a third mention of myself and Yoo together, for those counting at home.) My original goal in responding to Greenwald was to see if there was any substance to back up the bluster. I think it’s fair to say that question has been answered, so it’s time to move on.
A final thought: In the unlikely event that someone reads Greenwald’s summary of my positions instead of my own writings, I should point out that Greenwald’s description of my view on Al Marri is quite inaccurate. My views of the case are a lot like Judge Traxler’s in the en banc decision; read my old posts on the case for more.
UPDATE: To be specific, contrary to Greenwald’s claim, I reject the idea that the Executive branch has some sort of inherent Article II authority to detain citizens and legal residents inside the United States outside the criminal justice system. Greenwald imagines that I endorse that Article II position and then devotes half of his post to saying how it justifies his description of my views. But I have never taken that position, and it is not my view. Just to clarify, my view is that Ex Parte Milligan settled over a century ago that such powers to detain citizens don’t exist. Milligan is one of the great civil liberties decisions in constitutional law, and I think it is absolutely right. It is unclear to me why Greenwald thinks I am taking a different view, but he is wrong to imagine that is the case.
Following up on my posts on al Marri from last year, my view is that (a) the AUMF authorizes the detention of al Qaeda members if the appropriate due process protections are followed, and (b) the due process protections for non-citizen, non-legal residents in the U.S. are properly determined under the Hamdi balancing approach. This was the view of Judge Traxler in his en banc opinion, and I think Judge Traxler was right about this. The reasoning would not apply to U.S. citizens detained in the U.S., as they would be covered by Milligan rather than Hamdi, but it would apply to U.S. citizens in war zones abroad (the holding of the Supreme Court in Hamdi). I’m not really sure what the right level of due process protection is under Hamdi; the Hamdi balancing approach is pretty vague, and there’s a wide range of plausible ways to apply it ranging from pretty high due process protections to lesser protections. There doesn’t seem to be a clear answer to this based on current law, and I don’t have any easy answers to it, but something like Judge Traxler’s approach is at least a not-implausible outcome.
Anyway, I don’t know whether Greenwald is interested in whether he is accurately stating my views, but I did want to explain Greenwald’s misrepresentation for readers.
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