Thinking about detention [with apologies for cross posting]

[Michael MASINTER]

I should have been clearer in my flip remark.  I never intended to cast
aspersions on conservatives; to the contrary, I assume that conservatives
deeply believe that the government must respect the limits on governmental
power set forth in the constitution. It is the Bush administration which
has let it be known that it expects to have its way in the fourth circuit
because it is among the most conservative of circuits.  Given that
conservatives include libertarians among their ranks, I have always
thought the assumed link between a conservative philosophy and deference
to unchecked executive power to be highly questionable.

Like Eugene, I think the difficult question is the level of review to be
given to the determination by the government that a detainee is an enemy
combatant.  Absent a congressionally authorized suspension of the writ, it
would seem 28 U.S.C. 2243 requires the government to prove the legality of
detention; though AEDPA greatly limits habeas review after conviction, it
does not impair habeas review of detention unrelated to a conviction.
Since the government has elected not to proceed by seeking a grand jury
indictment, I do not think probable cause is the standard; it would seem
proof of the legality of detention would require proof, at least by a
preponderance of the evidence, that he is a combatant.  It is hard to see
what evidence would support that determination that would fall short of
probable cause to indict for any of a number of crimes; moreover, proof of
probable cause would only suffice to detain pending trial.  Here the
government wants to detain him indefinitely (read until he dies).  For
that reason, I would think the government bears a greater burden that
simply to prove probable cause.



Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 11 Jun 2002, Volokh, Eugene wrote:

>                 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?
> >
>