Fwd: RE: Boumediene

Earl Maltz emaltz at camden.rutgers.edu
Thu Jun 19 06:22:45 PDT 2008

>Date: Thu, 19 Jun 2008 09:11:20 -0400
>To: "Mark Tushnet" <mtushnet at law.harvard.edu>
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>Subject: RE: Boumediene
>I agree that the decisions made by officials are likely to be the 
>product of multiple and often conflicting influences (I am reminded 
>of the scene in Lawrence of Arabia where the sheik says that he does 
>not mistreat his prisoners because to do so would show bad 
>manners).  Nonetheless, I continue to maintain that the decision in 
>Boumediene incentivices officials to avoidtransparency and 
>encourages officials to quietly move POWs to venues that are clearly 
>outside the purview of the federal courts.  Whether this incentive 
>is outweighed by a fidelity to rule of law values is an empirical 
>question about which we have no data.  But I would merely observe 
>that an official would not be violating the holding in Boumediene by 
>moving a prisoner to Zimbambwe, Myanmar, or any other nation.  The 
>official would simply be creating a situation in which the Court's 
>holding was inapplicable.
>At 08:29 AM 6/19/2008, Mark Tushnet wrote:
>>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
>>"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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