Dots

[Volokh, Eugene]

        Well, I confess that the thought that this item referred to the
Padilla case didn't even cross my mind.  First, there was another item in
the same post, which referred to "The use of the 'unlawful combatant'
doctrine to short circuit judicial review and the right to an attorney, and
to subject American citizens to indefinite detention in military prisons
without the right to a trial . . . ."  Second, the problem with the Padilla
case -- and I agree that there is a problem, and have said so before on a
variety of occasions -- strikes me as being quite remote from the charge of
trying "to manipulate and frighten American citizens"; the real harm is
indeed the danger posed by the military detention itself.  I think that this
issue is much worth discussing, and I hope we will indeed discuss it as the
constitutional law matter that it is.

        But, at the risk of belaboring the obvious, let me return briefly to
the subject line of this message -- "dots," which is a reference to
"connect[ing] the dots" of the various charges brought against the Bush
administration.  Once one set asides what strike me as spurious connections
with Bush v. Gore and other unrelated matters, the most serious matters --
the military detentions, the constitutional issues raised by heavy use of
material witness warrants, the closure of the immigration hearings, the
possible constitutional problems with the detention of some of the over 1000
people who were detained following 9/11 (I say "possible constitutional
problems" because there's still the question of whether the detentions were
in fact constitutionally problematic) -- all have to do with the war.

        So one can "connect the dots" and see supposed sinister designs by
the Bush Administration -- or one can "connect the dots" and see the World
Trade Center.  That, actually, is if one is an optimist; the pessimist might
see a mushroom cloud over an American city.  There's a reason that we're
hearing more such complaints about the Bush Administration than about the
Clinton Administration -- this is the time when 3000 Americans were
butchered on American soil, as the harbinger of who knows how many more.

        Now I fully agree that constitutional rights apply even in war time;
but at the same time, the war might have something to do with how the rights
should be understood, and with which doctrines -- such as the traditional
acceptance of the military detaining many sorts of enemy combatants -- apply
in place of more conventional peace-time doctrines.

        And it must surely affect, I think, what one sees as the big picture
once all the supposed "dots" are connected.

        Eugene

I wrote:

> >         We also have the claim about "clumsy manipulation of public
> > announcements -- particularly by the Attorney General -- to
> manipulate
> > and frighten American citizens about the dangers of terrorism."  I
> > just have no idea what to make of it.  First, as I said,
> it's not the
> > AG who frightened

Michael Froomkin responded:

> I took this to refer to the AG's actions relating to the Jose
> Padilla case.  Padilla is a US citizen.  He was arrested on a
> material witness warrant.  Ashcroft gave a news conference
> describing Padilla as a "known terrorist" pursuing an
> "unfolding terrorist plot" (which suggested something was
> about to happen).  More recently, the government has been
> reduced to describing his activities as a "scounting expedition".
>
> Ashcroft originally suggested that Padilla was planning a
> "dirty bomb" attack on the US, making it seem like a much
> more immediate threat than is now suggested by a "scouting
> expedition". While press reports suggest Padilla may have
> talked about a bomb attack (which makes one wonder why
> there's been no conspiracy charge -- no overt act?) there was
> and is no evidence that I know of suggesting he had any
> access to the necessary materials.  In any event, no bomb
> appears to have been found.
>
> Ashcroft's remarks caused a panic big enough to move the
> market, perhaps because Ashcroft over-stated the effect of
> the type of "dirty" bomb allegedly at issue.  [As best I can
> tell from the news accounts, and I may be wrong about this,
> the factual error appears to have been confusing the massive
> effect of a radiation-enhanced ("dirty") nuclear explosion
> with the much more localized if still quite lethal effects of
> an ordinary bomb laced (thus, also "dirty") with radioactive
> material such as uranium dust; although both are horrible the
> difference is rather significant.]
>
> When after a month of incarceration as a material witness to
> events for which AFAIK no one has yet been charged, the
> government wasn't able to (or, if you prefer, chose not to)
> bring a charge against Padilla.  Rather than release him, the
> current occupant of the White House approved Padilla's
> reclassification as an "enemy combatant." He was transferred
> to the custody of the Defense Dept, and placed in the brig of
> a South Carolina naval base for indefinite detention without
> indictment or trial. [It's unclear to me if he's allowed
> visitors, or indeed how much contact with his lawyers he gets.]
>
> Now, according the the New York Times, with charges still not
> filed and Padilla still held in the brig, the government is
> arguing that the lawyers acting for him should not be allowed
> to see classified material on which the government apparently
> bases its decision to hold him, *even if* the lawyers get
> security clearances. [Minor aside: this isn't how I recall
> CIPA working (although my experience was in potentially
> exculpatory material, not whatever this substitute for an
> indictment is supposed to be).]
>
> >citizens; it's the terrorists. Second, I don't see how this is an
>
> Here, I thing the threat is the AG's view of what's just or legal.
>
> > attempt to "manipulate" people, or how the announcements themselves
> > were "manipulated."  What should the AG do?  Tell people
> that there's
> > no
>
> The AG should not attempt to set precedents that undermine
> our liberties in order to save them.
>
> > terrorist threat?  Not say anything, even if there's some evidence
> > that
>
> Ashcroft should not exaggerate the terrorist threat.  He
> should inform himself about matters of grave public import
> before terrifying people needlessly.
>
> He should have concluded that indefinite (in the sense of 'we
> have no idea when it might end') detention without indictment
> or trial of US citizens arrested in the US is incompatible
> with the Constitution.
>
> > there might be some particular imminent threat?  What if the threat
> > does materialize, and then people call the government "secretive,"
> > "manipulative," and "authoritarian" for "hiding information
> from the
> > American people"?
> >
>
> Perhaps we deploy that latter allegation when the executive
> branch hides crucial information from the US public -- AND at
> least the large majority, perhaps (reports are ambiguous)
> even all of the Congress -- that relevant foreign governments
> already have.  Like the 12-day gap in disclosure to the
> public about N. Korea's confession about its nukes program --
> a gap that conveniently allowed the disclosure to fall after
> the vote on the Iraq resolution.  As far as I can see this
> disclosure gap (especially as it relates to Congress) had no
> national security justification since the N.Koreans certainly
> knew all about the nukes.  It would undoubtedly have figured
> in the Iraq resolution debates had Congress been aware of it.
>
> > I'm not particularly moved by the argument that we somehow
> shouldn't
> > focus overmuch on each dot and look at the big picture.
> The proposed
> > big picture,
>
> OK. There are at least two dots.  Have at them.
>
> Are these constitutionally or morally legitimate exercises of
> executive branch power and authority?
>
> Do they enhance or undermine our democracy?
>
> Are they in the spirit of our constitutional traditions
> and/or how we wish to live and be governed?
>
> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                       -->It's very hot here.<--
>
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