Detention of enemy combatants -- long

[Mark Tushnet]

Eugene's defense of his rhetorical questions ignores, I think, the
difference between face-to-face conversations and e-mail listservs (and,
I think, claims a "first mover" advantage that ought to be questioned --
that is, particularly given the prior absence of defenses of the
administration's substantive positions, why is the burden on someone who
questions those positions to respond to silly pseudo-Socratic questions
rather than on someone who might think those positions are correct?  [My
answer:  It isn't; the burden is on anyone who would defend the
administration's position -- and, incidentally, not some position
different from the administration's that someone else might somewhere
assert.]  Why pose the concern about the position being challenged as a
question rather than simply asserting what Eugene now asserts:  "My view
is that the German soldier should not be released [for the following
reasons]"?  [My answer: to unjustifiably claim the first mover
advantage.]  And, incidentally, doesn't it prejudge the question to
describe the person as a "German soldier" when the question precisely at
issue is whether in fact the person was in fact a German soldier?  My
answer:  Yes, and that's what happens with rhetorical questions in
e-mail listservs [and maybe in pseudo-Socratic classes] --
presuppositions get slipped in that conduce to particular answers.)

I would note that the administration position is not that it is entitled
to prove enemy status without conforming to the entire range of
evidentiary rules applicable in civil/criminal cases (or even merely
without conforming to the hearsay rules), but that it is entitled to
prove enemy status by asserting such status in a sworn affidavit.
Again, the pseudo-Socratic question addresses something that isn't in
issue with respect to the discussion of the administration's position.

And now, exactly why is this -- "Second, regardless of what the specific
tradition as to hearsay evidence has been, the general tradition --
which I think also coincides
with necessity -- is that the military has been indeed entitled to
detain prisoners of war and other enemy detainees generally; that really
is pretty clearly our constitutional history (see the Colorado case that
I mentioned earlier, but that's just an unusual application of the
broader, historically agreed-to principle).  Should this tradition be
limited to the situation where the military can prove the person's enemy
status under the generally applicable civilian rules of evidence?  I
don't think so:  The difficulties of gathering evidence, taking
subpoenas, conducting depositions, and so on, make this infeasible." --
(particularly the last sentence) not properly described as an
authoritarian position?  My answer follows.  Eugene's formulation, at
least in his second paragraph quoted here, concedes that the tradition
he invokes (that the military can detain enemies) has no bearing on the
question of what evidence the military has to have to justify the
detention of people it asserts are enemies.  What's the basis for
accepting categorically, without case-by-case examination -- without it
being tested in any forum -- the assertion that gathering evidence is
"infeasible"?  My answer:  Deference to what the proponent assumes to be
military authority/expertise.  What reason -- presented in a public
forum -- is there to think that it is infeasible for the government to
supply reasons explaining why gathering evidence regarding the
circumstances under which it received information about Padilla's
planned activities is "infeasible"?  My answer:  None has been presented
so far, and the ones I can imagine all rest on deference to existing
authority unsupported by independent reasons.

(And, incidentally, what are we to make of the assertion, in the
affidavit submitted in one of the cases [I think Padilla's], that some
of the sources on which the government relies to justify its beliefs
about the citizen's activities have proved unreliable in other cases?
My answer:  Without invoking anything like a full-fledged civil/criminal
rule against use of hearsay, I would think that there's a problem in
relying on assertions about statements made by declarants who the person
seeking to justify the detention acknowledges have been unreliable in
other cases.  This isn't a rule about hearsay; it's a rule about
rational decision-making.)
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