Thinking about detention [with apologies for cross posting]

[Volokh, Eugene]

                Bobby makes an excellent point, and makes it very
effectively.  Let me just suggest, though, that the force of his second
prudential axiom -- and the threshold for what constitutes "last resort" --
must vary with our estimate of the magnitude of the "certain actions," and
of whether they depart from traditional norms.  (The case for such a
depature may actually be quite strong as to military detention, but I'm not
sure it would be as to other things, such as otherwise-Kyllo-violating
roving patrols that use Geiger counters.)

                Let me also mention a related item:  Last November, after
the tribunals were first proposed, I was expressing my slippery slope
concerns about them (I'm really on the fence here, so I've argued both
sides), and the person (I forget the name, or I'd give full credit) pointed
out that less than 10 years after Quirin, we were in the middle of (1) a
Cold War, (2) the Korean War, and (3) a concern (which was in considerable
measure well-founded, though the magnitude of the risk may have been
exaggerated) about domestic spying on behalf of the enemy.  Nonetheless, no
military tribunals were used, even though the precedent authorizing military
detention and trials of foreign spies had just been set, unanimously, 10
years before.

                Now of course this doesn't by any means prove that the
slippage won't happen in the future.  (I actually think the noncitizenship
element in the President's military tribunal order was an important means of
decreasing the risk of slippage, since it would diminish the utility of such
tribunals as a means of suppressing domestic dissent; and I'm therefore
worried about military detention of citizens, even ones such as Padilla.)
But it does suggest that our system is more resilient than some might fear,
though less so than some might hope.

                Eugene

Bobby Lipkin writes:

> -----Original Message-----
> From: Robert Justin Lipkin [SMTP:RJLipkin at AOL.COM]
> Sent: Tuesday, June 11, 2002 12:27 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Thinking about detention [with apologies for cross
> posting]
>
> In a message dated 6/11/2002 2:39:25 PM Eastern Daylight Time,
> VOLOKH at mail.law.ucla.edu writes:
>
>       the dangers we face today justify certain actions even if those
> actions pose dangers tomorrow.
>
>        I know little about the details of the federal courts'
> jurisdictional issues, so let me make one simple point about the above
> remark. Probably, everyone would agree with the remark in certain
> circumstances. It is probably an axiom of prudence that when faced with
> imminent evil or destruction, preventing it, if possible, is a priority,
> despite adverse future consequences.  But it is probably an empirical
> truth that the more readily we appeal to this axiom, the more likely we
> are to use it when upon reflection no reason exists for using it. This
> empirical truth (if it is true) suggests a second prudential axiom (and
> probably a moral imperative as well), namely, appeal to the first axiom
> only as a last resort. Further, ironically, in times of great trepidation,
> legitimate fear, and especially hysteria, we are rarely justified in
> invoking the first axiom. In those circumstances, (for instance, the fear
> of Communism in the late forti! es and fifties), we do great present as
> well as future damage by reasoning "the dangers we face today justify
> certain actions even if those actions pose dangers tomorrow." Although
> this reasoning is sometimes sound, its misuse (or illegitimate use) can be
> devastating. Of course, the problem is to be able to differentiate
> legitimate and illegitimate applications of this reasoning.  For my part,
> I think it far more prudent--and is much more likely to comport with my
> conception of morality--to resist such reasoning, or alternatively, to use
> it only as a last resort. No, I cannot provide a  perspicuous or even an
> uncontroversial analysis of "last resort," but I doubt that we've
> presently reached the circumstances justifying the use of the first axiom.
>
> Bobby Lipkin
> Widener University School of Law
> Wilmington
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