Boumediene

[Mark Tushnet]

To ride one of my hobby-horses:  Why does an executive official's sole incentive lie in achieving some antecedently specified policy goal, rather than -- or, in addition to -- complying with the Constitution?  Of course one could also distinguish between having an incentive to comply with the Constitution as the official interprets the Constitution (a departmentalist view), and an incentive to comply with the Constitution as interpreted by the courts.  And one would then want to think about the extent to which an official who takes a departmentalist view should take judicial decisions into account, either because of the courts' expertise (though not, to the departmentalist, authority) in constitutional interpretation, or because, as a political fact of life what the courts say will affect the official's ability to implement policy (because of a mistaken public rejection of departmentalism or because of the courts' practical ability to obstruct policy through repeated interventions).  In addition, one would want to think about the problem of "motivated reasoning" -- that is, the possibility that the official's -- and of course the judges' -- view of what the Constitution means may be importantly influenced by antecedent policy views (or, in the case of judges -- but also executive officials -- an interest in maintaining their branch's power against challengers).

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Thu 6/19/2008 7:24 AM
To: marty.lederman at comcast.net; conlawprof at lists.ucla.edu
Subject: Re: Boumediene
 
At 06:54 AM 6/19/2008, marty.lederman at comcast.net wrote:
>1.  "the Constitution . . . simply denies protection to a 
>vanishingly small, discrete group of people who are not members of 
>either of those consituencies."
>
>Well, "vanishing" is apt, I suppose, in light of the manner in which 
>this Administration attempted to place many detainees in a legal 
>black hole.  Not sure what makes them "discrete," since they were 
>detained from numerous different places and many of them have little 
>in common.  And although I wish the class were "small," I'm afraid 
>it isn't:  hundreds at Guantanamo, tens of thousands detained 
>elsewhere.  Moreover, if it were a "small" class, what then?  Which 
>way would that cut?  Finally, is the Constitution really designed to 
>protect only "constituencies," and not, say, "persons"?  Isn't that 
>assuming (simply asserting) the answer to the critical question?

I believe that the Constitution is designed to protect persons who 
are parts of certain constituencies.  I think that we would all 
agree, for example, that it is not designed to protect the people of 
Zimbabwe.  The question is whether the plaintiffs in Boumediene are 
members of this constituency.  On this point, I stand with Jackson in 
Eisentrager.

"Vanishingly small" is a relative term.  But in any event, the basic 
point remains.  A contrary decision in Boumediene would have in no 
way threatened the rights of the people whom I would describe as 
those whom the Constitution was designed to protect--American 
citizens and (to a much smaller extent) lawfully resident aliens.




>2.  More troubling is this, which I hope Earl did not really mean:
>
>"In the future, *if I am one who is in charge of making decisions 
>about the treatment of such prisoners,* my watchword should be to 
>follow the Elmer Fudd rule--be very, very, quiet.  The best way to 
>do this would be to quickly transfer the prisoners to the tender 
>mercies of a third parties--perhaps our gallant allies in the Mossad 
>or to some American-allied equivalent of Robert Mugabe..  If the 
>prisoners are then mistreated, oh, well--at least I won't have the 
>federal courts on my back, embarrassing both me and the country."
>
>Are you really suggesting, Earl, that federal officials should 
>surreptitiously and cavalierly ("oh, well") render detainees (i) to 
>third parties who are known to engage in cruel treatment (the Mugabe 
>equivalents); (ii) for the very purpose of ensuring that there is no 
>way for the courts and the public to insist that the Executive is 
>acting lawfully; and (iii) to do so with as little transparency as 
>possible?  And that if you were "in charge," that's what you would do?


I frankly have no idea what I would do if I were in charge.  I am 
merely pointing out the incentives for government officials created 
by the decision.  Do I believe that officials might respond to those 
incentives in the way that I suggest?  Absolutely.




>  -------------- Original message ----------------------
>From: Earl Maltz <emaltz at camden.rutgers.edu>
> > The degree of deference that is appropriate In individual cases
> > arising under both the Commerce Clause and Suspension Clause is a
> > function of the more general legal standard chosen to govern the
> > analysis of the relevant issues in each case.  No one denies that the
> > choice of that standard is a quintessentially judicial
> > function.  However, making this judicial choice, the Court needs to
> > be cognizant of the impact of its decision on the allocation of
> > institutional responsibility.
> >
> > In the case of the Commerce Clause, so long as the Court hewed (for
> > example) to the direct/indirect distinction, cases raising issues of
> > the extent of federal power inevitably raised issues that were
> > amenable to the kind of distinctively analysis in which courts
> > specialize.  However, in the 1930s, the Court decided that it should
> > get out of the business of closely scrutinized congressional
> > judgments in this area.  So it came up with a fact-specific standard
> > which the justices could cite as a reason for deference.
> >
> > The Court in Johnson v. Eisentrager took a more straightforward
> > approach, concluding that the Constitutional protections were simply
> > not available to the prisoners of war in that case, thereby
> > implicitly agreeing to defer to the judgment of the other branches of
> > government.   In support of this conclusion, one can link pragmatic
> > arguments for deference with originalist theory:  it simply did not
> > make sense for the drafters and ratifiers to create a regime in which
> > the judiciary would be involved in micromanaging this type of
> > situation, so we should not infer that they did.  The idea that such
> > a decision somehow demeans the importance of habeas corpus generally
> > is a red herring; the position of the Boumedine dissenters in no way
> > threatens the rights of any constituency that the Constitution was
> > designed to protect (citizens and lawfully resident aliens); it
> > simply denies protection to a vanishingly small, discrete group of
> > people who are not members of either of those consituencies..
> >
> > Moreover, I would suggest that, in the long run, the decision is
> > likely to have a negative impact on the transparency of the treatment
> > of prisoners of war generally.  The Bush administration only got into
> > this problem because there (with their typical adroitness) they
> > decided to make a grandstand play with the people captured on the
> > battlefield in Afghanistan.  In the future, if I am one who is in
> > charge of making decisions about the treatment of such prisoners, my
> > watchword should be to follow the Elmer Fudd rule--be very, very,
> > quiet.  The best way to do this would be to quickly transfer the
> > prisoners to the tender mercies of a third parties--perhaps our
> > gallant allies in the Mossad or to some American-allied equivalent of
> > Robert Mugabe..  If the prisoners are then mistreated, oh, well--at
> > least I won't have the federal courts on my back, embarrassing both
> > me and the country.

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