Thinking about detention [with apologies for cross posting]

[Volokh, Eugene]

                I think the aspersions cast on conservatives are not quite
sound here.  One doesn't have to be an authoritarian to be willing to see
the need for some pretty broad powers when we're facing the risk of dirty
bombs, possible nuclear bombs, possible biological attacks, and of course a
"conventional" attack that has already killed 3000 people in the U.S. --
sounds like weapons of mass destruction to me.

                I agree entirely that military tribunals and military
detention of alleged "enemy combatants" can be very dangerous to democracy
(I have a Web log post at
http://volokh.blogspot.com/2002_06_09_volokh_archive.html#85161381, which
points out some of these concerns, though it's aimed at a lay rather than an
academic audience); and I'm certainly very much open to criticisms of the
Administration on this.  But even people who aren't authoritarians, whether
they are generally liberals or conservatives, can conclude that the dangers
we face today justify certain actions even if those actions pose dangers
tomorrow.

                Shifting from labels to substance:  I agree entirely with
Michael that one important question is, as I point out in the blog post,
whether there'll be some civilian court screening of whether there's indeed
very strong evidence to think that a detainee really is an enemy combatant.
It's one thing to say, per Quirin, "enemy soldiers must be subject to
military law" -- but quite another to say "people, including U.S. citizens,
who are believed by the military to be enemy soldiers must be subject to
military law," especially when we leave the easy case of soldiers captured
on the field of battle.

                But how are the civilian courts to do this?  Will they hold
a full-dress trial in the habeas case to see whether the guy is indeed an
al-Qaeda member?  Will they merely inquire into whether there's probable
cause to believe this?  Will this inquiry be open or closed?  Can secret
evidence be used?  Perhaps this is itself an argument against Quirin --
though at the same time, I'd love to see some way of having it both ways,
and allowing military treatment of enemy soldiers while still diminishing
the risk that this would end up being applied to domestic dissenters.

Michael Masinter writes:

> If the district courts do not have jurisdiction to inquire into whether,
> in fact, a U.S. citizen detained indefinitely by the United States in the
> United States is an enemy combatant, then the rest of the constitution is
> little more than wallpaper.  Think what Richard Nixon could have done with
> this power during the Mayday demonstratons.
>
> Is this really just a forum shopping exercise, undertaken with the
> expectation that the judges of the fourth circuit will, by reason of
> their conservative bent, reflexively rule for the government?  When did
> conservative become a synonym for authoritarian?
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20020611/76343e67/attachment.htm