Detention of terrorist suspects
swaine at WHARTON.UPENN.EDU
Thu Nov 29 12:54:15 PST 2001
1. I would agree with Professor Martin that admissions of national origin discrimination are noteworthy and alarming, perhaps without any need for elaboration. But with respect to his subsequent posting regarding clear illegality and lousy lawyering: (a) to my recollection, as a matter of constitutional law, such discrimination is "only" subject to strict scrutiny, and recent affirmative action cases raise the question of whether that is invariably fatal; (b) Mr. Gonzales' remarks were a little more ambiguous and tentative than may have been apparent upon first listen (see <http://www.pbs.org/newshour/bb/white_house/july-dec01/gonzales_11-28.html>: JIM LEHRER: But is it's not in fact true that the over 600 detainees now that still remain, most of them are Middle East origin? ALBERTO GONZALES: They may be of Middle East origin, Jim, I don't know for sure. But what I understand and you'll have to talk with the folks at the Department of Justice about this, is that the decisions were based primarily on where people came from, the country of origin -- their age range, and things of that nature -- not based upon race or ethnicity or religion."); and (3) query whether we really should criticize the performance of a White House Counsel because he makes admissions that might not put the best spin on presidential policy (as opposed to, say, disclosing privileged information), but that serve the public interest in transparency, even if we disagree with the underlying policy.
2. A small request . . . Where possible, could senders try to clip the relevant parts of the messages to which they are responding, rather than including the text of all previous messages on the topic? Some of us receive Conlawprof in "digest" mode to decrease the amount of email traffic, and the compiled message can become nearly unreadable when the original messages are reprinted a dozen times. I'd guess that those who receive and read the messages sequentially in real time could also do without some of the originals. Thanks!
Assistant Professor, Legal Studies
The Wharton School, University of Pennsylvania
More information about the Conlawprof