Robel

[Volokh, Eugene]

    I much appreciate Sandy's remarks here; let me offer a few thoughts:

    1)  The Communist Party is not quite analogous to al-Qaeda; for all its
dangers, the Party included many innocent members who joined just to spread
ideas -- al-Qaeda, as I understand it, is a military organization, and I
suspect that all its "members" have done more than just expressed interest
in joining.  If the government tried to criminalize membership in some
hypothetical American Friends of Al-Qaeda, that would be a different story.
Sandy, care to provide a concrete hypo along those lines?

    2)  I think there are lots of good reasons for treating the decision to
start a foreign war quite differently from the decision to restrict speech
of Americans in America.  Ilya Somin makes some good arguments about this,
but let me just add a hypo:  Say that a war does begin, and say that it's
not even preemptive.  Literally, when the government attacks a foreign
target, it is depriving people -- some soldiers, but maybe also some
civilians who happen to also live there -- of life, with no due process at
all!  Are they entitled to a trial, to show that they are posing a danger of
*imminent* harm to Americans?  (What if, for instance, they are being
trained, and won't be sent to the front for 3 months?)  Are they at least
entitled to notice and an opportunity to be heard?  Doesn't seem to quite
make sense to me.

    3)  Let's focus on the supposed constitutional grievance with the
resolution -- what precisely is wrong with it, as a matter of the
constitution either in the courts or outside it?

    Eugene

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
Sent: Friday, October 11, 2002 9:13 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Robel



I always take Eugene's chastisements (as well as his compliments) seriously.
I agree with Mark Graber, though, that the discussion is not "merely"
political, but also constitutional along the following dimensions:

1)  To what extent is it likely that/should the Bush Administration feel
"bound" by the precedents of the Warren Court that protect the civil
liberties of communists to what many people, both then and now, believe to
be an "incredible" degree.  (I once taught Robel in Eastern Europe, and
almost all of the "students," most of whom were lawyers from the region,
were agape at the protection accorded communists to work in defense-related
industries.)  I suspect that most liberals, like myself, who supported the
decision just didn't take the Communist threat very seriously (at least as
represented by someone like Robel) and, concomitantly, didn't hesitate to
trust the judgment of the Warren Court justices over that of superannuated
intelligence agencies and the military (see Justice White's dissent).  Is
this still necessarily the case.  To what extent does September 11 put all
of the old Communist cases back in play, either as a predictive or as a
normative matter?

2)   Even more precisely, is it likely (or even conceivable) that the courts
would protect someone who "belongs" to Al Qaeda even if that person cannot
be shown to share the illegal aims of the organization and instead, say,
simply admires it for its resistance to modern culture while criticizing its
willingness to engage in illegal violence?  Wouldn't Yates (and, for that
matter, Scales) require such protection.  (And, of course, how could the
protection ever take place if the Executive Branch, simply by declaring
someone to *be* a member, deprives him of any access to a lawyer or to a
court?  Could Harry Truman simply have put anyone he suspected of being a
Communist in permanent, non-lawyered and non-judicially reviewed detention?)


3)  Why should we require "immediate" threats to suppress someone's freedom
of speech and not to kill a person in a pre-emptive military attack?  Is a
threat to civil liberties more serious than a threat to life?  That seems
implausible on its face, obviously.  Is it simply that the text of the
Constitution seems to protect freedom of speech more than it protects life?
This is (legally) plausible, but what does it say about the Constitution's
cogency?

4)  For those of us who take seriously the ideas of "the Constitution
outside the courts" and even of "conscientious legislators," what can be
learned from the rush to pass the PATRIOT Act and the open-ended
authorization for a presidential Caesar to cross the Rubicon whenever he
wishes?  Mark Tushnet, among others, has attacked judicial review on the
grounds that it doesn't give us all that much benefit, a view that I am
increasingly attracted to.  Is there any reason to believe, though, that the
courts (including Justice Kennedy) may, after all, be our "last best hope"
with regard to civil liberties, even if we shouldn't expect too much out of
it, given its past track record in every war up to now?  And if it is the
"last best hope," does this suggest that there is some merit after all to
judicial review?

sandy

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