On my flight from St. Louis to Denver today (not my final destination, mind you), I had the distinct displeasure of sitting right in front of three or four half-loaded idiots on their way to some sort of ski vacation in Colorado, who engaged in the following obnoxious behaviors, among others:

• Repeatedly hitting the flight attendant call button.
• Using the word “fuck” liberally in conversation, usually 3–4 times per sentence.
• Having an extended discussion of airplane crashes.
• Asking the flight attendant repeatedly if they could smoke aboard the aircraft.

While their level of obnoxiousness probably didn’t rise to the level at which I would have supported them being hogtied by an air marshal, hauled off to Gitmo, or forcibly ejected from the aircraft at altitude, in large part because my in-canal earphones and some additional volume on the iPod effectively muted them for about 3/4 of the flight, I can’t imagine I would have put up much of an objection to any or all of these actions—and idly contemplated taking such actions myself.

Orin Kerr links an Independent on Sunday article that claims the administration is planning to shut down the prison camp at Gitmo. Color me skeptical, to say the least.

My daily dose of humor was supplied by the original headline for this article, which was “Report cites evidence that US ‘outsources’ torture.” I had brief visions of lines of ex-CIA types outside unemployment offices.

In all seriousness, though, I wonder how much real indignation there is about such things. All societies—including our oh-so-enlightened European allies—have practiced torture (or Gitmo-style “I Can’t Believe It’s Not Torture”) since time immemorial, and while its use has generally been restricted to suspected scumbags in recent history, it still happens, wink-wink nudge-nudge denials, treaties, commitments, ad nauseum notwithstanding.

And, ironically, the incentives for torture may be higher in a democracy than a non-democracy. If the Spanish Popular Party government had waterboarded a few folks to gain enough intelligence to stop the Madrid train bombings (or at least to avoid erroneously attributing the attacks to the Basque separatists), they’d still be running the show. No dictatorship has ever been turned out of office because they couldn’t stop terrorist attacks.

In democracies, when it comes to questions of “us or them,” the constituency for “them” is George Galloway, Michael Moore, Robert Fisk, and a few other demented fools; not the makings of a broad coalition of voters, particularly when you have smoldering ruins as the backdrop of your campaign. Any rational government, left, center, or right, is going err on the side of “us.” And thus, sadly, those of us utopians who’d rather not see torture are probably going to be stuck with it.

Prompted in part by this BBC story on Winston Churchill’s position on whether or not Gandhi should have been allowed to starve if he went on hunger strike, and the Gitmo hunger strikes, I am forced to ask about the strategic considerations behind going on a hunger strike. If a prisoner voluntarily refuses to be fed for some basis other than the food itself (i.e. I could see why a Muslim might refuse to eat pork or non-halal beef), why does their captor have an obligation to feed them? More importantly, why does anyone care?

I’m not feeling particularly diplomatic these days (in part, because my visit to Target this evening came up with some cold medicine with some newfangled pseudophedrine substitute instead of the real thing, as if I was going to be making some crystal meth in the apartment while trying to recover from my cold)... so, here’s a definitive political stand: I oppose the Miers nomination—or, more accurately, I oppose her confirmation by the Senate.

And, for what it’s worth, “trust me” is a pretty lousy argument if you don’t trust the president’s judgment on other matters (in my mind, Gitmo first and foremost) either.

James G. Lakely of the Washington Times compares the press reaction to Karl Rove’s recent remarks about liberals and/or Democrats with Sen. Richard Durbin’s apparent attempt to draw an equivalence between Gitmo and Naziism, but I think some of Lakely’s evidence is rather specious… including this item:

The White House press corps also handled both stories dramatically differently. Questions about Mr. Rove dominated the White House press briefing the day after the speech was delivered with spokesman Scott McClellan being peppered with 22 questions on the subject.

A solitary reporter asked for the White House’s response to Mr. Durbin’s speech—two days after it was delivered—and Mr. McClellan was asked about it just two more times.

Karl Rove works for the president of the United States; one would expect that the president’s representatives would be asked to answer questions about his comments. Durbin, on the other hand, is a member of the legislative branch. This disparity doesn’t show bias—it shows that one person works for the president, and the other doesn’t.

On the recommendation of Orin Kerr and Glenn Reynolds, I read this Jon Henke post that makes a fairly compelling case that there are systematic problems with detainee abuse in the War on Terror—relying on sources that most would consider to be objective.

Henke also proposes two solutions, POW status and real trials, both of which should be familiar to longtime Signifying Nothing readers—heck, it’s been a recurring theme from Robert and I for over two years now.

Both James Joyner and Glenn Reynolds recommend this post at Belgravia Dispatch regarding the whole Gonzales-Gitmo-Abu Gharib flap. My general point of view (similar to that expressed here a couple of weeks ago by Robert) is when you’ve resorted to semantics—“stress positions” versus “torture” and the like—you’ve already lost the battle in the court of public opinion, even if legally you might be in the right.*

On Gonzales in general, I have to say that I never thought I’d favorably compare John Ashcroft to anyone else (although it could be argued he was at least an upgrade from Janet Reno), but at this point I’d rather have the Prude over the Enabler any day.

Radley Balko points to a Telegraph article that indicates that the Bush administration is settling in for a long haul with the Gitmo detainees:

The Bush administration is drawing up a long-term plan for al-Qa’eda suspects at Guantanamo Bay, including building a prison where they could be held for the rest of their lives without ever appearing in a court of law.

Defence officials told the Washington Post that the Pentagon was preparing to ask Congress for $25 million for a 200-bed prison, known as Camp 6, to hold suspects it does not have enough evidence to convict.

Another proposal being discussed is transferring many Afghan, Yemeni and Saudi detainees – the majority of the 500 suspects at Guantanamo Bay – to new US-built prisons in their own countries.

Local officials would run the prisons but the US would monitor them for compliance with human rights standards.

The good news is that many in Congress aren’t exactly convinced this is a good idea:

Sen Richard Lugar, the Republican chairman of the Senate foreign relations committee, said: “It is a bad idea. We must have a very careful, constitutional look at this.”

Sen Carl Levin, the senior Democrat on the armed services committee, said: “There must be some semblance of due process if you are going to detain people.”

If the administration is planning to come up with a constitutional and credible solution to the problem, it’s certainly not on display in this plan.

We’re in a bit of a box with the Gitmo detainees. [Their ambiguous status is] [n]ot of our own making, to be sure, but we are left to deal with it. Jeralyn wants to see all of them released, though given the recidivism rates of the others that have been released, it seems like a bad idea. We release these guys, they perpetrate acts of terror and we send the military after them. These guys are a bunch of fucking skulkers to begin with—they don’t wear unforms and hide among civilians—which will result in further civilian deaths either from their acts or our response to their acts. Probably both. I doubt this is what Jeralyn really wants. And no, sitting back and taking it, or making excuses for future acts of violence, is not an option.

There could be a middle ground. We could simply concede that they are POWs—even though they are in violation of the Geneva Conventions—and tell them that they will be released when hostilities have ceased in Afghanistan. That alone will take a decade or more and, once the entire country has been secured, we can turn them over to the government of Afghanistan. Fewer civilians will die—ours and theirs—and we’ve stuck to the letter of the conventions, even if it ambiguous.

It may seem that we’ve been riding the Samizdata coattails recently, and maybe we have, but they’ve been on a roll and Britain is dealing with many of the same issues that the U.S. faces. Among these is habeas corpus. Our constitution provides us with guidance on the matter, thankfully, and it really hasn’t been as big of an issue as it might otherwise be.

The constitution allows Congress—some would say the President as well, during times of war (I disagree)—to place limits on habeas corpus, but in general it’s understood that the government may not violate it and must follow Congress’s will on the matter. In fact, the most notable, and contentious, example I can think of is the case of Yasser Hamdi. Even then, once it was established that Hamdi was born in the U.S.—and had a claim to U.S. citizenship—he was removed from Gitmo and brought to a U.S. prison where he stayed until released earlier this year, after renouncing his U.S. citizenship. Presumably, if caught in terrorist activities in the future, he won’t be given this kind of consideration.

Without getting too far into the difficulties around Gitmo, it seems to me that President Bush could have avoided that whole controversy by establishing military tribunals for the Gitmo inmates from the beginning, rather than asserting that they could be detained indefinitely with no judicial review at all. Perhaps a reader that is also a lawyer could provide some details and additional perspective.

My point in all of this—and I’ve definitely taken the long way around the barn getting there—is that habeas corpus is an essential barrier between us and a despotic government. Britain is dealing with that very issue now with regard to their own citizens:

I said that the power of detention [without charge or trial] is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

“The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.”—Thomas Jefferson to A. H. Rowan, 1798. ME 10:61

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Disagreements?

Alex Knapp more-or-less sums up my reaction to the Supremes’ ruling on the Guantanamo detainees and José Padilla. More, of course, at Volokh. And, there’s archived Signifying Nothing Gitmo coverage here.

Incidentally, both Alex and Von approvingly quote from Antonin Scalia’s dissent. (Mind you, the most immediate impact of this case on my life is now I have to shoehorn it into two-thirds of my courses in the fall.)

Mark A.R. Kleiman:

So now we have a choice, as voters: Are we going to ratify the decision to make torture (described in various weaselly ways) part of the policy of the United States, or are we going to reject it by replacing those responsible?

Great idea, but what’s our guarantee that a Kerry administration wouldn’t engage in the exact same behavior, if not worse? Where are Kerry’s condemnations of Gitmo? (Everyone’s condemned Abu Gharib, so that doesn’t count.) Mrs. Kerry (the ex-Republican) seems rather more forceful than Sen. Kerry. And, if Kerry is going to try to outflank Bush on terror, is it plausible that he can simultaneously promise to get tougher on al-Qaeda while renouncing the current means by which the U.S. is getting tough on terror?

Throwing the bums out is a great idea… so long as we’re not bringing in new bums that are equally bad, if not worse.

Professor Bainbridge thinks some branches of government are more co-equal than others:

Reading the accounts of the Supreme Court’s oral argument yesterday on the Guantanamo prisoner appeal, I am struck yet again by the unweening arrogance of the US judiciary. Set aside the substantive merits of the case, of which I believe Justice Jackson’s aphorism “the Constitution is not a suicide pact” more than adequately disposes (see also my friend and colleague Eugene Volokh’s more substantive critique). Instead, consider how offended some members of the Court seemed to be by the notion that any aspect of American life might lie outside their reach. Breyer, for example, complained: “It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.”

Apparently only the Supreme Court is “free to do whatever they want… without a check.” If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution.

In actuality, our elected representatives have a great deal of power to constrain the judiciary: they may, for example, limit its jurisdiction, expand its membership (“court packing”), reduce funding, split circuits, and take myriad other actions designed to frustrate the court. Lower court judges can, and often do, defy the clear precedent set forth by the Supreme Court. Congress and the president routinely ignore the intent of Supreme Court decisions like INS v. Chadha. The Supreme Court has no police power to compel compliance with its decisions; President Eisenhower sent the National Guard to Little Rock, not Earl Warren, while President Jackson gave the (figurative, if not literal) finger to the Court when it told him to stop deporting the Cherokees.

Heck, good money says that if the Supremes had done what almost all agree now is the right thing in Korematsu, and said Japanese-Americans were being deprived of their rights by being interred, it wouldn’t have made the least bit of difference. And, should the Court actually agree with the Gitmo detainees’ case, and if the hypothetical Reinhardt decision comes that some detainees should be released, I’m not expecting the administration to be in any hurry whatsoever to comply—more likely, they’ll just ship them off to the Mossad or something.

To assert that “our elected representatives have essentially no power to constrain” the courts is borderline absurd. Congress and the president have plenty of power—they just choose not to exercise it, given that both parties want to have a Supreme Court that is willing and able to do the dirty work of standing up to the voters when they demand “uncommonly silly” laws (that nonetheless get overwhelming legislative support) like flag desecration acts, public morals legislation, and the like.

Update: Brett Marston agrees with me, at least in part, citing additional constraints on the Court (most notably, that it is restricted to ruling on cases on its docket).

Is there anyone who thinks this plan is a good use of time and resources?* I realize that the fungibility of resources (a fancy way of saying the ability to “walk and chew gum at the same time”) is often overrated, that DOJ‘s “porn surfers” wouldn’t be much help in the War on Terror, and there is a bit of a dark side to the “legit” pornography industry that takes advantage of young (but legally adult) women from abusive backgounds, but a crackdown on dirty movies seems like a pretty stupid idea nonetheless. I personally would have no beef with a crackdown on “kiddie porn” and the like, but as Glenn Reynolds points out the Ashcroft plan goes far beyond this eminently reasonable target to go after such examples of “I Can’t Believe It’s Not Porn” as Skinemax and Spectravision.

But, if we must do this, I think David Adesnik’s solution of having the ex-Taliban Gitmo detainees do the, er, heavy lifting seems appropriate. And I suspect the reaction of Josh Barro of the Harvard Republicans reflects that of most young conservatives: a healthy dollop of “what the hell are they thinking?”

Will Baude is less impressed than usual with my thoughts on the relative value of legalistic and attitudinal approaches to the law and, by extension, on the whole Guantanamo Bay thing.

First, to clarify, I was making an empirical rather than a normative argument. The nature of the Supreme Court is mixed—when there is a clear, controlling precedent that was ignored by a lower court, the behavior of the Court is usually to reverse and remand the decision without scheduling an oral argument (sometimes known as the “Ninth Circuit Smackdown” manoeuver), and when the lower-court decision was legally correct and consistent with precedent, the Court doesn’t grant certiorari. However, when the Court does grant cert—admittedly something it only does in a small minority of cases—the decisions are much more likely to be based on attitudinal considerations, or what normal people call “politics.” That’s the nature of the beast: work hard enough, and you can find a precedent for anything, or find a reason why Case X is distinct from the precedent that decided Case Y. If we’re going to analyze the Court’s decision-making, it should be viewed through this prism. This is one area—and perhaps the only area—where I think a number of political scientists understand more about the judiciary than lawyers do.

One normative issue, then, is how judges on lower courts should behave. The U.S. judiciary is designed as a principal-agent system: there’s a Supreme Court, and inferior courts. The Supremes decide what The Law is, the inferior courts implement The Law, and the Supremes make sure The Law is implemented correctly. Due to workload, however, the Supremes don’t function as a pure principal—some decisions escape their notice, and sometimes the system is gamed to ensure they don’t actually function as the principal (for example, see Piscataway v. Taxman, where a case was deliberately removed from the system to avoid intervention by the principal). Because of this, politicians want to fill the lower courts with mini-Scalias and Reinhardts, rather than wishy-washy O‘Connors,which politicizes the lower courts to no end. Is this a good thing? Probably not. As much as is possible, the law ought to be based on regular, institutionalized procedures—based on laws passed by the legislature, common law, and precedent. However, at the pinnacle of the system, I’m not sure it can be.

However, the larger normative question in this particular case is whether or not Reinhardt (more properly, the 9th Circuit) is right to intervene. On balance, I’d have to say intervention is right. The cost to the administration to justify its action before the judiciary is minimal compared to the potential cost to human liberty if the judiciary defers to executive judgment. At some level, it’s the Carolene question: nobody to the political right of Dennis Kuchinich is going to stick up for the people at Gitmo. At another level, it’s a question of separation of powers—the executive is essentially asserting the right to do whatever it wants without effective oversight from either Congress or the judiciary, including inventing its own secret judicial system out of whole cloth. Surely this ought to be troublesome, particularly to lawyers like Glenn Reynolds and Eugene Volokh, but their collective response seems to be “eh, it’s just Reinhardt” and micro-analysis of how, since we did the same thing with Germans in 1944, or because the sovereign status of Gitmo is subject to some obscure treaty provision, this is all just peachy.

Now, at some level I could care less about the people at Gitmo. I realize to some extent the foreign bleating about them would just be bleating about some other topic if we’d given them an all-expenses paid vacation at Club Med. As a diplomatic matter, I realize that we’re probably carrying water for the Australians and Brits with their detainees (god knows Tony Blair doesn’t want the headache of dealing with the British collaborators with the Taliban). The rest of the detainees are probably much better off at Gitmo than they would be in the hands of the Afghan, Saudi or Pakistani authorities—which is probably what I’d have done with them. That still doesn’t mean that I have to like it—or approve of the administration’s handling of the issue.

I was going to write a long rant about lawyers’ obsessions with such whimsical notions as stare decisis and legalistic reasoning, in connection with the Padilla and Gitmo cases. Thankfully, Will Baude points out a book review by Richard Posner that—while dealing with the seemingly completely different issue of gay marriage—makes a basic point about the judicial construction of rights that seems to escape everyone else who’s ever attended law school:

It should be apparent by now what the problem with Gerstmann’s approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent…, and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called “legal reasoning,” and it is hard to take seriously. For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it. (The case was the notorious Bowers v. Hardwick, which had upheld the validity of criminalizing homosexual sodomy.) For another, it would be child’s play, as a matter of legal casuistry, to limit those two cases to conventional, monogamous, non-incestuous, heterosexual marriage.

Judges like to pretend that their decisions are dictated by “logic,” or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court’s other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all “political” decisions—not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases.

Fundamentally, I don’t think it matters whether or not there’s a legal precedent for Padilla’s detention or the indefinite limbo of detainees at Gitmo. What matters is whether or not they are the right things for the government to be doing, and in my opinion, neither are consistent with American values. Belittle popular punching bag Stephen Reinhardt all you want for saying that—god knows I think he’s an idiot at least half the time—but don’t pretend that your cites are any better than his, because fundamentally they aren’t. It’s all politics, and those who dabble in constitutional law would be well-advised to keep that in mind when discussing the judiciary.

Meanwhile, PG of En Banc gets to the heart of the substance of my uneasiness with Eugene Volokh’s position on the Gitmo detainees. Eugene’s position may (or may not) be legally correct, but it strikes me as morally wrong. Elsewhere: Robert Prather agrees on Padilla and disagrees on Gitmo.

This is my entry in the OTB Beltway Traffic Jam for today.

It’s been a busy day for wanna-be terrorists in the courts; as James Joyner and One Fine Jay note, the 2nd U.S. Circuit Court of Appeals has ordered the release of alleged dirty bomber José Padilla, a decision both agree with, while the 9th Circuit’s decision that detainees at Guantanamo Bay deserve access to counsel and the normal judiciary, contradicting a decision of the D.C. Circuit, has met with a tepid reaction from Glenn Reynolds and outright disagreement from Professor Bainbridge.

Not being a lawyer—or playing one on TV—myself, my gut instinct is that both decisions are correct, and while there may be some (as yet unclear) value to holding the Guantanamo detainees, I don’t think that value is sufficient to justify the ongoing diplomatic fiasco attached to them—even if countries like Britain and Canada, whose citizens are among the detainees, would probably prefer that the U.S. deal with them at Gitmo rather than dealing with them themselves, even if they won’t say so publically.

Michele at A Small Victory quite rightly takes to task those that make an analogy between our treatment of the Gitmo detainees from Afghanistan to Hussein’s treatment of allied POWs. However, it does raise the question: what’s the long-term plan for the Afghan prisoners held at Guantanamo Bay? Some have apparently been released recently, but many others still remain in custody, apparently indefinitely.

Obviously the idea is that eventually they’ll be put in front of some sort of tribunal, but there have been no public indications of when these tribunals will come about, nor are there any suggestions of handing them over to the new Afghan authorities for trial on charges there. It seems to me that the administration has, at the very least, dropped the ball on communicating what it plans to do to resolve the situation of the detainees.