A quotation to ponder

Bryan Wildenthal bryanw at tjsl.edu
Thu Sep 23 22:35:02 PDT 2004

I wasn't claiming an exact fit between Black's concerns (either in Reid or in his philosophy generally) and the Bush Administration's actions. The quote seemed provocative and suggestive to me. Black might well have supported post hoc punishment of disruptive protesters more than I would agree with. But I think he would have been horrified by the Secret Service's now routine use (in conjunction with local law enforcement) of blatant prior-restraint tactics to thwart any vigorous protest speech or assembly within sight or hearing of Bush campaign events.

With appreciation to Paul Horwitz for taking my serious rhetorical question seriously, I would dispute the idea that the Bush regime's basic approach to legal issues surrounding detainees might be "worrisome" or "wrong" but not "arbitrary."

Au contraire, it is the essence of "arbitrariness" for an executive authority to lock people up for longterm periods incommunicado with little or no due process of any kind. (Even today, only a tiny handful of the hundreds of detainees, thousands if you count all the Iraqi prisoners still in Abu Ghraib, are starting to get a very dubious form of military tribunal.)

There may well be good reasons to seize, temporarily, suspected terrorists, especially in a field of battle. But when the executive asserts sole and unreviewable power to control the fate and liberty of such detainees over the long term, that is inherently "arbitrary" and is in Black's words a "very dangerous doctrine" -- regardless of whether it turns out to be justified or not in a factual sense in any particular case -- because it vests "dangerous" discretion in governmental officials other than courts enforcing the rule of law.

Bush has, quite literally, claimed the right and power to seize and lock up, for years, any American citizen he or his executive underlings deem to be dangerous, with no court review (he lost on the latter point, to some extent, before the Supreme COurt, but that is what he claimed), and apparently to subject them to treatment at least bordering on torture if he deems necessary. He has said that not only does current law allow this, but memos by his underlings claim that Congress actually lacks power under the Constitution to constrain him from interrogating such prisoners as he deems necessary in his sole discretion.

Exactly how is any of this different from the prerogatives asserted by the absolute monarchs of "Old Europe", who seized and locked up prisoners in their Guantanamos, or Towers of London, and tortured them at will? (Several former Guantanamo prisoners report sexual abuse reminiscent of what happened at Abu Ghraib, though that has not gotten extensive media coverage.) Yet English rulers lost such powers in 1689!

Bush has asserted the most lawless, arbitrary, and expansive scope of presidential power over the liberties of American citizens ever in American history. That is not an opinion or a partisan argument. It is a simple fact. Some may argue that he is justified, but we should face facts, and he should be called upon to justify his actions. Clearly guilty traitors and irregular combatants in the Civil War and World War II got more due process from Lincoln and FDR (at least prompt military tribunals) than Bush has yet allowed Jose Padilla, whose factual guilt has been far from persuasively established (even Ashcroft has backed off the original charges against him), more than two and a half years after he was kidnapped by presidential order from the lawful civilian criminal justice system.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Paul Horwitz
Sent: Thursday, September 23, 2004 7:25 PM
To: conlawprof at lists.ucla.edu
Subject: RE: A quotation to ponder

I'm going to assume that Prof. Wildenthal's question (see below) was 
substantially a rhetorical question, but those are often the most 
interesting and fruitful to attempt to answer.

The first thing I'd note is that Justice Black's stated concern is with 
constitutional protections against "arbitrary" government.  Many of the 
examples cited below deal with instances in which, given the discretion 
asserted by the government, we might justly fear arbitrary government 
conduct (how can we be sure the government had a reason to imprison this 
particular person, without the procedural protections of the Bill of 
Rights?), and therefore want to uphold the Bill of Rights as a barrier 
against such conduct in general.

But the government's reasons for acting in these cases are not necessarily 
arbitrary at all.  There are all kinds of plausible, non-arbitrary reasons 
to apply some measure of physical force in interrogating members of Al 
Qaeda, for instance, or to detain without delay or scruple an American 
citizen found in Afghanistan in circumstances which indicate he is actively 
collaborating with terrorists, or to abandon or aggressively interpret the 
Geneva Conventions.  That doesn't mean they are good policies or that the 
non-arbitrary reasons advanced in their favor are good reasons.  Indeed, 
Black's concerns might still hold: because we fear arbitrary government, we 
must apply the Bill of Rights even when the government's actions are 
exquisitely justified.  In any event, Black's concern in this passage is 
with the risk of "arbitrary" government, not harsh or unwise government.

A number of the other examples are, to answer the rhetorical question 
further, somewhat relevant to Justice Black's point but only somewhat so.  
Most of the asserted First Amendment violations cited are cases in which, of 
course, the plaintiffs have full recourse to a panoply of judicial hearings 
and remedies -- as in the case of the protesters in New York, who were 
detained as a result of local police decisions and not presidential fiat.  
It may even turn out that some protesters among the general crop mentioned 
below -were- lawfully and properly detained.  (This is by no means a summary 
of my own views on the Administration's treatment of public protest, I 
should add, I would hope unnecessarily.)  Those concerns are fairly far 
afield from Justice Black's concerns in Reid.

I would also wonder whether Justice Black would stumble over the 
distinction, quickly elided below, between "American citizens and other 
individuals."  I truly don't know the answer to that one.  Reid itself seems 
almost entirely to be referring to American non-solider citizens only; 
although it refers generally to "civilians," it is fairly clear he means 
American civilians.  Since Justice Black voted with the Court in Ex parte 
Quirin and In re Yamashita, it's possible he would have considered 
distinction quite significant.  It's even possible he thought his vote in 
Quirin was justified on the basis of convenience and expediency.  More 
likely, he thought that some decisions taken in war are not just convenient 
and expedient but necessary (or at least entitled to deference on the part 
of the courts).  As Max Fischer once said, "War does funny things to men."

I would finally wonder, rhetorically, where Justice Black, who dissented in 
Cohen v. California, voted to uphold the conviction in O'Brien, dissented in 
Street v. New York, dissented in Brown v. Louisiana, wrote for the Court in 
Adderley v. Florida, etc., would come down in some of the protest episodes 
mentioned below.

Again, none of the above necessarily tips my own hand as to what I think of 
the wisdom or constitutionality of the incidents discussed in the rhetorical 
question.  I shouldn't have to add that, but since constitutional 
scholarship is often treated as a form of politics by other means, I add the 
disclaimer lest I be misunderstood.  It's just not clear to me that Justice 
Black's quote in Reid gets us all that far in pondering the genuinely 
worrisome government actions referenced by Prof. Wildenthal.

Paul Horwitz
Associate Professor
Southwestern University School of Law

>From: "Bryan Wildenthal" <bryanw at tjsl.edu>
>To: <conlawprof at lists.ucla.edu>
>Subject: A quotation to ponder
>Date: Thu, 23 Sep 2004 17:08:20 -0700
> > From the assigned reading in my constitutional law course this week:
> >
> > "The concept that the Bill of Rights and other constitutional 
>protections against arbitrary government are inoperative when they become 
>inconvenient or when expediency dictates otherwise is a very dangerous 
>doctrine and if allowed to flourish would destroy the benefit of a written 
>Constitution and undermine the basis of our government."
> >
> > Justice Hugo L. Black, plurality opinion in Reid v. Covert, 354 U.S. 1 
> >
> > What relevance does this have to a presidential election in which the 
>incumbent President and his administration have arrested and held American 
>citizens and other people incommunicado without trial, used prior restraint 
>methods (condemned even by the ancient British common law over which our 
>Constitution was a vast improvement) to pre-emptively block peaceful speech 
>and assembly, singled out protesters (as compared to similarly situated 
>pro-government activities and supporters) for arrest, harassment, and 
>prosecution for peaceful speech and assembly, kept such peaceful speech and 
>assembly out of sight and out of mind in remote, fenced-off "free speech 
>zones," produced memos condoning loopholes and rationalizations for 
>torture, deliberately "disappeared" military prisoners (dozens, perhaps 100 
>or so according to the military's own reports) by hiding them from the Red 
>Cross, deliberately endorsed disregard of the Geneva Conventions on a 
>massive scale, appointed federal judges who have endorsed and even 
>perpetrated many of these very abuses, and presided over the most massive 
>scandal involving torture and abuse of military prisoners in American 
> >
> > I leave that to you to consider.
> >
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