Authoritarianism as an ideal type
tbwolff at UCDAVIS.EDU
Tue Oct 29 08:34:31 PST 2002
In furtherance of Mark's comments, I note that the federal government had
arguments yesterday before the Fourth Circuit on the Yasir Hamdi detention.
According to NPR's reporting of the argument:
- The government has relied solely upon a two-page affidavit by a Defense
Department official, containing the (hearsay) accounts of two Northern
Alliance soldiers to the effect that Hamdi was captured on the battlefield,
with the Taliban, holding an AK-47 rifle.
- It has refused to identify the soldiers offering this account, or to
provide access to their original statements, or to permit Hamdi from
obtaining any discovery on the underlying information at all.
- It has taken the position that the Department's determination that Hamdi
is an "unlawful combatant" is unreviewable by any court (a position, it is
worth reiterating, that is squarely rejected in Ex Parte Quirin).
- In response to questions by Chief Judge Wilkinson, the government has
(1) it can detain "unlawful combatants" for as long as it decides, in
its sole discretion, that such detention is necessary;
(2) it can detain American citizens and foreign nationals with equal
(3) it can detain such individuals even when found on American soil and
in a civilian (i.e. non-combat) setting; and
(4) it can detain such individuals whether or not a formal state of war
exists if the Department feels, in its sole and unreviewable discretion,
that such detention is necessary for national security.
I would be most grateful to hear a principled defense of this position from
my colleagues on this list.
> In response to Earl Maltz's post: One of the problems in this
> "discussion" is that the "conservatives" have not engaged in a
> discussion at all. They have simply asserted that the terms being used
> were insufficiently well-defined for them to figure out why particular
> policies were being described as evidence of an authoritarian
> constitutional vision, without either defending the policies in
> substantive constitutional terms or explaining why those policies did
> not provide evidence for the assertions about a constitutional vision.
> Conservatives may continue to refuse to engage the merits of the
> substantive claims, or the larger argument about constitutionalism, as
> Earl recommends. But I for one would not take that as evidence that
> conservatives have cogent responses to the (at least by now) reasonably
> well-focused claims made in other postings.
> To get more specific: Precisely what position seems most
> constitutionally defensible, from a conservative point of view, about
> the evidentiary requirements that must be satisfied before an American
> citizen can be held in indefinite detention? Or, even more specific,
> why (if it is) is it a sufficient justification for such a detention
> that an employee of the government identified solely by name and not by
> position has signed and submitted to a court an affidavit containing
> factual assertions that, if true, might justify the detention?
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