In Order to Destroy the Village, We had to Sue it

by Kieran Healy on June 30, 2004

Eugene Volokh gravely considers the danger that a number of people designated by the government as enemy combatants—or rather, a number of Al Qaeda agents, or rather, 50,000 alleged enemy soliders of some foreign power—might avail of Rasul v Bush and file an avalanche of habeas corpus writs claiming they aren’t really enemy soldiers.[1] Thus, he fears, one of the fundamental tenets of the rule of law, affirmed this week by the Supreme Court, becomes a deadly weapon in the hands of our litigious enemies. I see a mini-series, Stalag Law, set in the not-too-distant future. In a nation suffocated by habeas writs inappropriately filed by malicious captured soldiers from their hotel-like detention centers, a tiny remnant of the 82nd Airborne Paralegal Division fights to clear the appalling backlog of cases …

Brad DeLong and (more appropriately) the Medium Lobster have already given this the treatment it deserves. I just want to add that this is the same Eugene Volokh who declared himself unwilling to discuss the topic of actual lawyers employed by an actual government of the United States searching for a legal rationalization for actual torture that members of that administration actually authorized. Look, like I said, blog about whatever you want. But here’s a hypo for you: Let’s say that you’re a respected legal scholar with strong interests in the protection of individual freedoms from the dead hand of the state. And let’s say that your government is found to have tortured people. And let’s say that its lawyers produce threadbare rationalizations saying that’s no big deal. And let’s say that in response you avoid the topic because it’s disgusting and because “if I had a choice in how to invest my scarce time, I’d rather not invest it here.” And let’s say that, instead, you choose to focus on the possibility that a captured foreign army might sue its way to victory within the U.S. courts. What conclusions might your readers draw given such (admittedly far-fetched) circumstances?

fn1. “Your honor, I swear, I have no idea why all 50,000 of us are dressed in similar uniforms.”

{ 37 comments }

1

Ray 06.30.04 at 12:27 pm

We can only pray that Osama Bin Laaden is not monitoring the Volokh Conspiracy. Can you imagine the scene, as thousands of terrorists arrive at Guantanamo Bay, already in their blindfolds and orange overalls, taunting the guards? And then, some poor farmboy from Indiana makes the fatal mistake of throwing them into prison, all 50,000 of them! Little did he know that the lawyers were waiting over the ridge, habeas corpus writs in hand…

2

Rob 06.30.04 at 1:06 pm

“We were all dressed the same because we were having this really large theme party.”

3

REA 06.30.04 at 1:29 pm

I was really shocked at how idiotic Volokh’s comment was–usually he doesn’t let his politics warp his judgment on legal issues.

The possiblity that some people will abuse the legal system by bringing meritless claims is no reason to bar people with arguably valid claims from suing. Sorting out the valid from the meritless is THE WHOLE POINT OF HAVING A COURT SYSTEM.

Why, we could all troop down to court tomorrow and sue the president for sexual harrassment! The suits would be thrown out of court, but think of the burden on the poor president! Obviously, we should no longer allow anyone to sue anyone for anything–it might be abused.

4

Motoko Kusanagi 06.30.04 at 1:35 pm

Isn’t Volokh missing the quite crucial point that the reason for Rasul v. Bush is the refusal of the US administration to treat the X-ray prisoners as POW’s?

5

mc 06.30.04 at 1:41 pm

Oh lord. That is so lame, I can’t believe this guy ever graduated at all, nevermind become a professor.

Also, he forgets that in WWII, the fight was both against “national governments” _and_ insurgent forces still loyal to the regimes even after they’d collapsed. Just like today.

6

mm 06.30.04 at 2:04 pm

I don’t see anywhere in the opinion, motoko, where the court relies on the fact that the detainees are not being treated as prisoners of war. The opinion does make something of the fact that the detainees are not “enemy nationals,” a simple fact not the doing of the Bush administration. The dissent suggests that, based on the Rasul holding prisoners of war may in the future bring habeas petitions, and the main opinion does not, as they often do, drop a footnote denying that interpretation. So I don’t understand the basis for your reading. I also don’t take the relevance of mc’s point: as I read the opinion, every German POW could have filed a habeas petition.

7

Barry 06.30.04 at 2:22 pm

“What conclusions might your readers draw given such (admittedly far-fetched) circumstances?”

That his libertarian mask is slipping? If he’s a law professor, he should know far better.

What was really hilarious was a bunch of right-wingers on Brad’s site who thought that his parody was sound reasoning.

8

Katherine 06.30.04 at 2:43 pm

1) The hypo is totally implausible.
2) If we are arguing by hypothetical, the hypo of our government disappearing and torturing people in a place over which we exercise complete and indefinite authority is much, much more plausible.
3) Rasul was a statutory holding. Congress could change the statute.
4) I agree that the majority opinion in Rasul was sloppily written. But a lot of that stuff is non-binding dicta or simple lack of clarity. It can easily be fixed in a later case. Kennedy showed how to decide this one on narrower grounds. I don’t know why he didn’t end up writing the majority, but I would bet good money that should the “enemies charging over the hill with habeas writs” theory ever came true–or even a situation far short of that–O’Connor and Breyer, and quite possibly Souter and Ginsburg, would adopt his reasoning.

I just don’t understand how you think like this and call yourself a libertarian.

9

antirealist 06.30.04 at 2:59 pm

“What conclusions might your readers draw given such (admittedly far-fetched) circumstances?”

That he’s more interested in the legal consequences of a Supreme Court decision than the merits of a dubious legal opinion from a bunch of government lawyers?

10

bob mcmanus 06.30.04 at 3:04 pm

I was fascinated to read another few thousand words this morning in my newspaper on Alvarez, the Alien Torts Case. The Court concentrated on an area as much as I have ever seen it do before. I suppose it is more a question for law blogs, but does a foreign national have no recourse if the US gov’t violates a commercial treaty? No standing?

Reminds me of some arguments about the President, who really is above the law, may kill, steal, rape etc and the only recourse is impeachment. I guess the only treaty enforcement mechanism is war.

As far as Eugene Volokh goes, he is a partisan Republican, and a very smart one. He will discuss FMA, because he knows it will not affect Bush’s re-election chances significantly. Torture is like, icky.

11

rd 06.30.04 at 3:14 pm

Read Volockh’s post carefully. Its’ not “soldiers of a foreign power” that are the problem. They’re already covered by the laws of war and won’t trigger US habeas petitions. Its “insurgents in a an allied country,” not natives of any country officially at war with us, that could conceivably trigger habeas. These types of forces, who by the way *won’t* be wearing all the same uniforms, who could, depending how you read Rasul, automatically have access to US courts, no matter where they’re held. So, the Taliban, conceivably Al Queada.
I’m afraid I can’t regard that prospect as casually as the rest of you. Either the full panopoly of US criminal process will be applied, making detentions almost impossible, given the “crime scene” is a war zone. Or a massively watered down set of protections will be set up, with potential to spread to US citizens accused of terrorism. Indeed we already see this with the plurality in Hamdi. Scalia’s set of positions looks pretty good compared to this.

12

Ray 06.30.04 at 3:36 pm

Don’t worry rd. If 50,000 insurgents in an allied country are captured, 50,000 people who are not prisoners of war, 50,000 people who will not be the responsibility of that allied country, 50,000 people who could possibly take advantage of this ruling… I’ll get the monkeys flying out of my butt to help you with the paperwork.

13

the talking dog 06.30.04 at 3:48 pm

What is Eugene’s problem here?

The government has a simple out, under the companion Padilla case: just keep moving the prisoners around, or keep switching commanding generals around– that way, Al Qaeda will be defeated on grounds of personal jurisdiction when it keeps naming the wrong defendants! Eugene is usually more creative in his defenses of the imperium; I’m disappointed.

14

David Sucher 06.30.04 at 3:52 pm

Maybe, “smart but not wise” might sum up his general approach.

15

Aeon Skoble 06.30.04 at 3:55 pm

“As far as Eugene Volokh goes, he is a partisan Republican”
That’s quite absurd. No one with even a passing familiarity with his work could say that.

16

bob mcmanus 06.30.04 at 4:07 pm

“passing familiarity with his work could say that.”

I do, and do. If you care to cite a couple things he has said that are dead certain to preclude from a Republican appointment to the bench, do so. Something that would lead Hatch to say: “No way, not Volokh, withdraw it.”

IN defense of Volokh, whose hypothetical may have not been the best, this subject (Rasul;Soros v Alvarez) is discussed today by Will Baude at Crescat Sententia, Unlearned Hand, and has been discussed at the Int’l blogs like Beautiful Horizons. Complicated enough to leave to the lawyers, tho my gut inclination is that victims of American Geneva Violations should have recourse.

17

Joe M. 06.30.04 at 4:20 pm

If you care to cite a couple things he has said that are dead certain to preclude from a Republican appointment to the bench, do so. Something that would lead Hatch to say: “No way, not Volokh, withdraw it.”

How about Volokh’s defense of legalizing incest? See here or here. That’s not exactly a popular position, much less something that a partisan Republican would say.

18

Steady Eddie 06.30.04 at 4:20 pm

As Jim Henley said, the explanation is simple — it’s all about Volokh’s lust for a Federal Circuit Court judgeship.

Volokh’s supposed psychological distaste for addressing the Bush Administration’s legal fig leaves for torture was simply his recognition that at least one pending Circuit Court nomination was dead because of the nominee’s penning of one of the abominable legal memos, that Jay Bybee would never have gotten confirmed had his role in same been known in time; and that out of sheer expediency Volokh wanted to avoid advocating for torture, which would make him unconfirmable; against torture, which would make him less likely to be nominated; and cleverly being neither clearly for nor against, which would be too much effort, might not work anyway, and would certainly not win him any advocates. Sheer expediency.

“And this be a law that I’ll maintain,
until my dying day, sir:
that whatsoever king may reign,
still I’ll be the Vicar of Bray, sir.”

19

bob mcmanus 06.30.04 at 4:26 pm

To help you out, Randy Barnett’s libertarian interpretation of the Ninth Amendment gives some support to Roe v Wade. He will never get a Republican judgeship.

Volokh is quite careful in what subjects he talks about, and how he discusses them. There have been many Republicans who have condemned the “torture memos” vigorously, Tacitus for example. I believe Volokh knows that implacable enemies can be created here.

20

asg 06.30.04 at 4:27 pm

Hasn’t Volokh also advocated drug legalization?

21

rd 06.30.04 at 4:31 pm

forget the numbers involved. If voloch’s hypo doesn’t apply, its b/c the Court won’t extend its ruling beyond Gitmo to American bases in Afghanistan and Iraq. In which case, the lesson the Court hands down is that the govt should have just kept everybody at the Bagram Air Force base, where we know prisoner conditions are just outstanding. A triumph for civil liberties! If it does extend to bases in Afghanistan and Iraq, it seems Voloch’s hypo holds completely.

22

aeon skoble 06.30.04 at 4:35 pm

“If you care to cite a couple things he has said that are dead certain to preclude from a Republican appointment to the bench, do so.”
I don’t think drug decriminalization is a high priority for the GOP.
( here )

23

bob mcmanus 06.30.04 at 4:36 pm

“question of whether the government should criminalize our consensual sex lives (I think that such criminalization is indeed outrageous, though I’m not sure that it’s unconstitutional), not to the quite plausible analogy that Santorum draws.”

Will draw some questions, but wouldn’t keep him off the bench. Much of his discussion of the FMA tended toward “let the states decide”, and I see not much here that would disagree with Scalia’s dissent in Lawrence.

24

aeon skoble 06.30.04 at 4:38 pm

Sorry, the link didn’t code properly. Here: http://volokh.com/2003_05_04_volokh_archive.html#200255867

25

Ray 06.30.04 at 4:40 pm

Holds completely?
Don’t tell me – these 50,000 prisoners are going to be captured by monkeys flying out of _George Bush_’s butt. I guess he really is the Wicked Witch of the West.
Honestly, where the hell do you think all these prisoners could possibly come from?

26

bob mcmanus 06.30.04 at 4:46 pm

“Hasn’t Volokh also advocated drug legalization?”

Again, the man is a smart and careful libertarian and constitutionalist. And may even see the obvious trends in that direction for Republicans and the country. (IMO, the religious right is in its last desperate gasp).

It is one thing to hypothetically say that pot should be legal. It would be quite another thing to say that all federal and state pot laws are unconstitutional. This is the game Volokh plays that many other libertarians do not.

27

Kynn Bartlett 06.30.04 at 5:04 pm

Why don’t we just draft lawyers next time a war breaks out?

–Kynn

28

Andy 06.30.04 at 5:05 pm

In Volokh’s defense, coming up with wacky hypotheticals is sort of what law professors are paid to do. This hypothetical, admittedly, doesn’t play out so interestingly, to 95% of readers, but that’s not morally blameworthy.

Also, remember that he’s blogging, not writing a journal article. He makes an off-the-cuff observation; lots of people make off-the-cuff flames in response; and we all go on. Just let’s not decide the guy’s a reactionary jerk on the basis of his wondering whether there’s a loophole in Rasul v. Bush.

29

Ray 06.30.04 at 5:18 pm

Hypotheticals have to be at least semi plausible to have any weight, in politics and law at least. It is at least possible that one day the US President will discover that the Supreme Court, Senate, and Congress are being controlled by invisible aliens, who will blow up the entire planet if he tells anyone about his discovery. Should we give the president the power to fire the other branches of the government, just in case? Should we withdraw the power of Senate and Congress to impeach a president, in case they end up being mind-controlled by aliens? Of course not.
Should we give the President the power to arrest anyone, hold them indefinitely without charge, and refuse them any access to the courts, because otherwise he won’t be able to detain 50,000 surrendering terrorists? Apparently so.

30

Doubting 06.30.04 at 5:25 pm

We have allies? Really?

31

rd 06.30.04 at 5:33 pm

As I said, forget the numbers involved, whether its 50,000, 5,000 or 500. We are and will be detaining insurgents in Afghanistan who could fit the court’s definition in Rasul for individuals who can sue in US courts if they’re in a place under US “exclusive jurisdiction and control.” Will US bases in Afghanistan count as such places, along with Gitmo? If so, Voloch’s hypo holds. If not, then the lesson of the court’s decision is that the US could have avoided all problems by keeping detainees in overseas bases under even less outside oversight and worse conditions than in Gitmo.

32

Cranky Observer 06.30.04 at 5:51 pm

> In Volokh’s defense, coming up
> with wacky hypotheticals is sort of
> what law professors are paid to
> do.

OK, but I think that honesty would then compel one to continue with, “let’s look at the other side of the coin. Say you wake up tomorrow and John Ashcroft has arrested 50,000 US citizens and shipped them to Gitmo. Including your next-door neighbor. Do any of them qualify for h.c.? Can they all be held indefinatly without charges? Why or why not?”

Cranky

33

Katherine 06.30.04 at 5:56 pm

1) Volokh’s hypo is that habeas petitions will disrupt things enough to impede the war effort, so it’s entirely dependent on the numbers.

2) You can almost always make an argument that a court decision protecting individual rights just gives the government incentive to violate those rights in new ways. Scalia’s line of decisions gives the government an incentive to hold prisoners at Guantanamo instead of the U.S. He says U.S. citizens are protected even in Gitmo but his rationale is not clear. Even it were clear, you could argue that this gives the government an incentive to make naturalization harder, or just disappear detainees entirely & make it physically impossible to file habeas petitions. You could argue that all these decisions except Thomas’, combined with the ruling on the Alien Tort Claims Act, give the government the incentive to send people to Egypt or Syria to be tortured instead of interrogating them ourself. You could argue that drawing a bright line between citizens and non-citizens destroys any possibility that non-citizens rights will get any protection at all. You could argue that any Supreme Court decision enlarging individual rights at the expense of the war on terror gives Bush an incentive to disobey the Supreme Court.

I don’t think the proper response to these arguments is to throw up our hands and agree that laws are silent in times of war. We can close a lot of these loopholes without jeopardizing our ability to protect ourselves or the President’s constitutional authority. To the extent that we can, we should.

The government has incentives to keep detainees in secure places far from battlefields. Gitmo is almost certainly more secure than Bagram. We also have incentives to keep people where we have complete control and we know we can hold them indefinitely. I believe these factors apply more to Guantanamo than Bagram.

34

rd 06.30.04 at 6:15 pm

“plugging loopholes” is fine, but I can’t think that taking the final consequences of a decision into account is somehow unprincipled. Assuming that the court’s decisions aren’t extended to Afghanistan or other overseas bases, I think the end result for detainees is likely to be more dangerous and less protective of human rights than Gitmo.

35

Justin 07.01.04 at 4:03 am

A couple of points on Rasul.

One: Congress can always suspend habeus, making it all moot.

Two: Has anybody stopped to think that the CONSTITUTION ITSELF is antithetical to the United States invading foreign countries? It was built in the 18th century, at a time when the country pretty much just wanted to be left alone. Now, constitutions evolve, and decisions are dependent on context. But I don’t see why we should willy-nilly avoid the constitution because it goes against wars of aggression that occur because our commander in chief needs to get re-elected. If you don’t like it, let the people amend it. If it’s an emergency, the CIC can always give em the good old Andrew Jackson treatment.

Volokh’s hypothetical is a joke, if only because under those circumstances, the results would change. The Supreme Court isn’t going to allow the Republic to end in the name of stare decisis.

36

Justin 07.01.04 at 4:03 am

A couple of points on Rasul.

One: Congress can always suspend habeus, making it all moot.

Two: Has anybody stopped to think that the CONSTITUTION ITSELF is antithetical to the United States invading foreign countries? It was built in the 18th century, at a time when the country pretty much just wanted to be left alone. Now, constitutions evolve, and decisions are dependent on context. But I don’t see why we should willy-nilly avoid the constitution because it goes against wars of aggression that occur because our commander in chief needs to get re-elected. If you don’t like it, let the people amend it. If it’s an emergency, the CIC can always give em the good old Andrew Jackson treatment.

Volokh’s hypothetical is a joke, if only because under those circumstances, the results would change. The Supreme Court isn’t going to allow the Republic to end in the name of stare decisis.

37

iouaoei 07.08.04 at 7:23 am

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