Right to judicial review of detentions

Sanford Levinson SLevinson at law.utexas.edu
Tue Jun 14 02:36:36 PDT 2005

Eugene writes:   Now one may well argue that there should be an exception to this
exception, for instance for U.S. citizens, or for people detained
outside the theater of war, or something else.  But simply faulting the
U.S. for not adhering to a categorical norm that has, to my knowledge,
never been seen as truly categorical, strikes me as unhelpful.

He is surely correct, in the particular sense that one of the basic things we all know as constitutional lawyers is that "categorical norms" (whether the First Amendment or the Contract Clause, for starters) really do not mean what they say (i.e., "no law" doesn't really mean "no law"; it simply means "no law" in the absence of a "compelling interest," or, in the case of impairments of contract, some reasonable interest of the state).  But this is one of the things that provoked my initial interest in the subject of torture, for Article II of the UN Convention on Torture, duly ratified by the Senate of the United States in the name of the people of the United States, is written as if to head off any such "compelling interest" arguments by stating, as clearly as language can ever state everything, that "no circumstances whatsoever" can justify derogation from the duty not to engage in torture.  (This is one of the reasons why there is so much pressure to define what the US is doing as something other than torture.)   What, exactly, did the Senate think it was doing when it ratified the Convention and did NOT register a reservation to Article II (unlike the Article I definition of "torture," where the Senate offered a more interrogator-friendly definition than the UN's definition)?  Did it believe, for example, that it was limiting the President's power as commander-in-chief to order torture if deemed "necessary"?  And might John Yoo be correct, in the August 1, 2002 OLC memo, that such a limitation would be unconstitutional, because the President retains, as an attribute of his office, the right to order torture or, indeed, to do anything else (such as emancipating slaves, which was obviously an uncompensated taking of private property) deemed to aid the prosecution of a war in which the US is engaged?  
But, of course, the Constitution is full of "categorical norms," including no "cruel and unusual punishment," "two senators for each state," fixed presidential terms, the "high crimes and misdemeanor standard for impeachment," etc., etc.  And the question is whether there is any disciplined process by which we decide which "categorical norms" are in fact not to be treated "as truly categorical," in Eugene's language.  But if one believes that the President can, e.g., block publication of newspapers if they print material relating to imminent military operations or order torture, then why can't the President--or at least President and Congress working together--suspend elections that might plausibly be viewed as threatening national security?  Such a view could be eminently reasonable, I believe, because of the indefensible stupidity of the American constitutional system that currently leaves a ten-period--it used to be worse before the 20th Amendment--between the electoral repudiation of an incumbent president and the inauguratin of his/her successor; this means, in practice, that there could well be no truly legitimate government during the hiatus with regard to making central decisions regarding the conduct of an ongoing war.  The British have an almost infinitely better system in this regard.  
In any event, I take it that Eugene rejects the views of, say, Justice Scalia or John Manning that it is enough to read the text in order to know what "the law" is.
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