SLevinson at law.utexas.edu
Fri Dec 23 17:35:25 PST 2005
I, of course, agree with Janet that "the Sunstein exegesis has some big
holes," beginningn with his remarkable use of "avoidance" to render FISA
irrelevant. But my central point (and Eugene's as well) is that one
can't refute a textual argument with an historical one (i.e.,
legislative history) unless we agree that history trumps text (which
"we" don't, since there is no agreement at all among people on this list
or within the judiciary as to what the rank order should be, even though
particular individuals passionate defend one or another of what my
colleage Philip Bobbitt calls the "modalities" of constitutional
interpretation). And it is interesting that Janet's primary argument
against Sunstein also involves a modality shift, to precedent. As every
good lawyer knows, if one modality defeats you, then shift to one that
helps you, and the ultimate trump, for many, is some version of
consequentialism or what Philip calls "prudence." If it's good enough
to support the Supreme Court's basically lawless decision in Newdow,
where standing "doctrine" (assuming that there is even such a thing) was
mangled in order to avoid upholding the Ninth Circuit and generating a
national firestorm of protest, then why shouldn't other branches be
allowed similarly mangling of the law in order to achieve what they
believe the public good?
From: Janet Alexander [mailto:jca at stanford.edu]
Sent: Friday, December 23, 2005 5:48 PM
To: Sanford Levinson; Stephen Bundy; Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: RE: NSA leak
Sandy writes: But doesn't the Bundy refutation of Sunstein depend on
legislative history? Sunstein's argument, on the other hand, seems
entirely textual, indeed Scalian. So what is the relevance of Daschle's
memory if the language can legitimately be interpreted as Sunstein
As a textual argument, the Sunstein exegesis has some big holes.
The majority in Hamdi specifically limited the case to "enemy
combatants" defined as persons who were "'part of or supporting forces
hostile to the United States or coalition forces' in Afghanistan and who
'engaged in an armed conflict with the United States' there."
Sunstein's argument has two stages. One is, "if the authorization of
force necessarily authorizes detention, see Hamdi, it also authorizes
surveillance because we usually surveil people we're fighting." That's
a much bigger leap than the Supreme Court made in Hamdi or Rasul. When
forces are engaged in active combat, some will be captured. From that
fact the majority derived the necessity of some power to detain.
Wiretapping phone conversations (or data mining) far from the
battlefield isn't even close.
The second step is to forget about the express limitation of
Hamdi to enemy combatants who "engaged in an armed conflict with the US"
in Afghanistan. Even if the syllogism were valid, Hamdi would only
support surveillance of those who engaged in armed conflict with US
forces -- not, as Sunstein would have it, "those associated with al
Qaeda or other organizations . . ."
In implementing Rasul, the Bush administration immediately began
employing a broader definition of "enemy combatant" than the one the
Supreme Court used. The legality of detention, rendition, various
interrogation methods, and surveillance of people who were never on a
battlefield has not been upheld by the Supreme Court. The
Graham-Levin-Kyl language, if it is retained in the final defense
spending bill, would purport to eliminate federal court jurisdiction to
hear such a challenge by non-citizens held at Guantanamo. The
Administration is working hard to prevent the Court from granting cert
to address the question (with respect to US citizens) in Padilla.
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