Comments on: In Order to Destroy the Village, We had to Sue it

By: iouaoei

iouaoei — Thu, 08 Jul 2004 07:23:05 +0000

I think its far more plausible to say that Rawls, Nozick, Davidson and the like are analytical philosophers that attempt to articulate and examine the bigger picture. 英国留学 women garments 出国留学 porcelain insulator 出国留学咨询耳机 surfing scooter pocket bike mini chopper gas scooter foot scooter electric motorcycle mini e-bike electric-bike mini e-scooter electric-scooter gas scooter surfing scooter gas scooter 耳机 tomato paste green raisin electric scooters pocket bike mini chopper skate board q scooter

By: Justin

Justin — Thu, 01 Jul 2004 04:03:20 +0000

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.

By: Justin

Justin — Thu, 01 Jul 2004 04:03:10 +0000

By: rd

rd — Wed, 30 Jun 2004 18:15:41 +0000

“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.

By: Katherine

Katherine — Wed, 30 Jun 2004 17:56:59 +0000

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.

By: Cranky Observer

Cranky Observer — Wed, 30 Jun 2004 17:51:43 +0000

> 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

By: rd

rd — Wed, 30 Jun 2004 17:33:58 +0000

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.

By: Doubting

Doubting — Wed, 30 Jun 2004 17:25:21 +0000

We have allies? Really?

By: Ray

Ray — Wed, 30 Jun 2004 17:18:49 +0000

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.

By: Andy

Andy — Wed, 30 Jun 2004 17:05:28 +0000

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.

By: Kynn Bartlett

Kynn Bartlett — Wed, 30 Jun 2004 17:04:17 +0000

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

By: bob mcmanus

bob mcmanus — Wed, 30 Jun 2004 16:46:40 +0000

“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.

By: Ray

Ray — Wed, 30 Jun 2004 16:40:33 +0000

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?

By: aeon skoble

aeon skoble — Wed, 30 Jun 2004 16:38:38 +0000

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

By: bob mcmanus

bob mcmanus — Wed, 30 Jun 2004 16:36:55 +0000

“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.