Enemy combatants: the gov't litigation strategy

[SILVERBURG Dr. Sanford]

Where is the government's brief published?
TIA.
Sanford Silverburg


On 30 Oct 2002 at 12:16, Ward Farnsworth wrote:

> At 08:34 AM 10/29/2002 -0800, Tobias Wolff wrote:
>
> >[the gov't] 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).
>
> It's not clear to me that the government still is taking this position.
> The government's brief earlier in Hamdi's case did say this; its most
> recent brief reserves that position as a possibility, but argues primarily
> that it determinations are entitled to great deference and that the
> affidavit it has produced should be sufficient to satisfy whatever standard
> governs judicial review of these determinations.  I don't know what was
> said in the oral argument, and am trying to lay hands on a tape.
> Journalists' accounts make me nervous.
>
> Because of this apparent change of position and for other reasons, though,
> I am interested in questions raised by the government's litigation
> strategy.  The strongest form of the government's earlier apparent position
> -- that the executive branch has completely unreviewable discretion to
> label people "unlawful combatants" and detain them indefinitely, even if
> they are U.S. citizens and are taken into custody while in this country --
> seems indefensible in several senses, including the sense that I don't know
> of anyone outside the government who defends it.  The only attempted
> defenses I have heard are on slippery slope grounds -- that pretty soon
> we'll end up having giving legal hearings and discovery to everyone we
> capture in Afghanistan, etc.  Those concerns might be met by distinguishing
> between citizens and non-citizens and people captured in the theater of
> operations and people captured here in this country, etc.  Such
> distinctions strike me as all but inevitable, yet the government appears
> not to be proposing them.  Why?
>
> My guess at the real reason is that the executive branch does not
> understand itself to be offering its best view of what the Constitution
> permits and requires.  Its stance is better understood as a negotiating
> position.  It expects (or worries that) the courts will split the
> difference between what the executive branch says it wants and what the
> lawyers for the detainees say is required, so it does what parties
> routinely do in negotiations:  it stakes out a position more extreme than
> it reasonably can expect to see honored, and more extreme than the
> executive branch itself might be prepared to adopt if it were the
> arbitrator (a normal arbitrator, not a baseball-style arbitrator who gives
> one side or the other exactly what it requests).  The arbitrator in this
> case -- the Fourth Circuit -- naturally expressed skepticism about the
> government's initial offer.  So now comes the second offer.  Another way to
> put the point is that the government wants to make the detainee's position
> seem clearly wrong, and one way to signal this is by taking a position very
> distant (not just a little bit distant) from what the detainee's lawyers
> say.
>
> This model explains why the government is taking positions that nobody
> outside the government seems interested in defending.  It has the
> attractive property of assuming that the government's lawyers are not just
> being obtuse, but the at least potentially unattractive property of
> assuming that the government's lawyers regard themselves as involved in
> constitutional haggling.  (An alternative possibility, which I disfavor, is
> that the government's lawyers on the case are obtuse, but work for
> non-obtuse people who deliberately hire obtuse people because they make
> good negotiators in this setting.)  If any of these latter images are
> accurate, might they be understood among other things as a(nother) casualty
> of judicial supremacy?  (Not a rhetorical question.)
>
> Ward Farnsworth
>
> _____________________________
>
> Ward Farnsworth
> Boston University School of Law
> 765 Commonwealth Ave.
> Boston, MA  02215
> Phone:  (617) 353 4008
> Fax:  (617) 353 3077