9-11 Detentions

[Ivan Ludmer]

Being a current law student, I have my own views on how we form our biases
and predilections, but that's neither here nor there for purposes of this
list.  As I understood the proposal, it suggested a potential comparison
between the Korematsu case and what is happening at Guantanamo Bay.  In my
mind, the only comparison is that both resulted in detention (wrongful
detention, perhaps).  Korematsu asked whether a race-based classification
was justified under strict scrutiny (I hardly see a compelling government
interest and a classification narrowly tailored to meet that interest as a
loophole) and was upheld--wrongly, as many now believe--on that basis.  So
an analogy with Korematsu requires analysis under Equal Protection doctrine,
which I think is problematic for many reasons when applied to Guantanamo.
There is no overt suspect racial classification; one could argue that, as in
cases such as Yick Wo, there is a massively disproportionate impact on those
of middle-eastern descent (any more specific racial classification would
likely offend many of the detainees), but the importance of disproportionate
impact is that it speaks to discriminatory purpose, so if another
explanation exists for that impact, it does not demonstrate an invidious
classification.  Here, it hardly requires a racially discriminatory purpose
to primarily detain those of middle-eastern descent during wars conducted in
the middle east.  So the analogy to Korematsu is weak even before you reach
strict scrutiny analysis.

In addition, the dispute regarding Korematsu is not that the government
lacked compelling interest--indeed, national security is the most compelling
of interests.  Rather, it is that detaining every person of Japanese descent
is not a narrowly tailored means to achieve that interest.  I think one
would have a far stronger argument that the detentions at Guantanamo are
more narrowly tailored to improve national security than those in Korematsu
in that those detained were arrested while in combat against Americans (but
see Obsidian Wings for
some<http://obsidianwings.blogs.com/obsidian_wings/2006/04/liberation.html>disturbing
evidence
to the contrary<http://obsidianwings.blogs.com/obsidian_wings/2006/04/liberation.html>).
Since strict scrutiny after Korematsu has tended to be fatal in fact,
though, it's not unlikely the detention would be struck down anyway, if a
court reached this point in the first place. That's unlike because it relies
on the finding of an invidious racial classification, which for the reasons
above would not be easy in this context.  In sum, the analogy strikes me as
particularly weak, because of the vast difference in scale, type of
detention, identity of detainees, and government program being challenged..
Then again, as a liberal law student from the north, this entire analysis
may be suspect because of my overwhelming desire to emulate liberal notions
uncritically, whatever that means.

-Ivan Ludmer
JSW <http://jointstrikeweasel.blogspot.com/>

On 4/9/06, Michael Richardson <ballotaccessproject at hotmail.com> wrote:
>
>
> Professor Wilson's observations on the liberal northern students response
> being different from southern students simpler perspectives to issues of the
> day seems, at first blush, to be rather general.  However, my observations
> in the Boston area, particularly closer to Harvard one physically gets, is
> that the liberal bias is so strong that individuals will actually articulate
> ideas they disagree with because they have lost or surrendered independent
> critcal thinking.  The Anybody-But-Bush virus was particularly virulent in
> the Boston area in 2004.  Partisan arguments clouded analytical judgment.  I
> don't know if this was the case in the classrooms of Harvard but it
> certainly was the case on street corners in Cambridge...at least the street
> corners I frequented.
>
> Michael Richardson
>
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--
-Ivan
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