Topic: Law and Civil Liberties

Posner on Humanitarian Intervention

Below Andrew criticizes the claim that our Iraq intervention has failed because it has increased the risk of terrorist attacks.  While I, as a caveman lawyer, have little expertise on matters of foreign relations, I am an expert on what other lawyers have to say about foreign relations. 

Here, Chicago law professor Eric Posner (and son of Richard Posner) argues that the Iraq war has revealed a different trade-off:  the uncertain payoff of humanitarian military intervention.

Sending Up Security

People are highly tuned risk managers. Daily, we make decision about risky things like crossing streets. To do so, we analyze the speed and density of traffic, light conditions, our own physical skills, and myriad other factors to determine whether to cross in the middle of a block or at a controlled intersection.

Five years since 9/11, people are getting better at assessing the risks of terrorist acts. And people are growing increasingly skeptical of the risk choices being made for them by the Department of Homeland Security. The evidence? Their willingness to see security lampooned.

The writers at The Onion are undoubtedly finding a good reception for this send-up of the Transportation Security Administration’s liquids rules.

And people are diverting themselves from their exasperation with airport security using this fun game

A basic indictment of government-provided security is in daily newspapers’ comic sections this morning. Syndicated cartoon Bizarro by Dan Piraro is titled “Orientation Seminar at Homeland Security.” It depicts a teacher at a chalkboard that says “Inconvenience = Security.” (Available online here early next month). 

The funny bone is a highly tuned instrument, and it’s showing the dissonance in air security today. 

Does the Military Commission Act Apply to U.S. Citizens?

Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.

First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.

But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.

Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission. 

My conclusion:  A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.

Defending the Constitution

Republican Sen. Arlen Specter expects the Supreme Court to invalidate a law that he voted for:

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.

Don’t be surprised if one or two Supreme Court justices respond with something like this: “This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.” 

As I point out in this paper, too many people seem to think that the Constitution will somehow automatically check the government when it goes too far. Not so. The Constitution cannot enforce itself. This latest episode in anti-terrorism legislation shows that we have not broken out of a vicious political cycle and that’s a very bad indication of the political and legal trends in America.

Habeas Corpus

Today’s Washington Post has this to say about the detainee bill that is working its way through the Congress:

Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention, a right known as habeas corpus.

House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees.

Cato Institute adjunct scholar Richard Epstein, criticized the proposals to curtail habeas corpus in this statement to the Senate Judiciary Committee a few days ago.

For additional background on the writ of habeas corpus, read this and this.

Baltimore Sun: Deep-Six REAL ID

The Baltimore Sun opinion page recognizes that the REAL ID Act’s national ID system “will neither weed out terrorists nor make a dent in the flow of illegal immigration - the two problems it was devised to address.”  In light of the exorbitant cost and impossibility to implement, its advice is to junk the REAL ID Act.

Bush, McCain, and Prisoner Policy

Today’s Washington Post has an editorial entitled “Rush to Error.” The editorial says that Congress should not be pushed into approving the Bush-McCain accord with respect to the handling of prisoners. The Post is right.

The legal issues can get pretty complicated, but it may be useful to take a few steps back from the nitty-gritty to gain perspective. Last June, the Supreme Court issued a landmark ruling in a case called Hamdan v. Rumsfeld. The Court ruled that President Bush’s plan for trials before military tribunals was unlawful and that Common Article III of the Geneva Convention applied to all prisoners in U.S. custody. Thus, as a result of Hamdan, this is the status quo:

1. There will be no trials before special military tribunals.

2. The CIA “program” of secret arrests, secret detentions, and secret interrogation tactics is shut down.

3. There is a chance that there might be a war crimes prosecution someday because the War Crimes Act made it a crime to violate Common Article III of the Geneva Convention.

The Bush administration abhors the status quo and that is why it has been seeking legislation from the Congress in recent weeks. The proposed legislation will do at least three things:

1. It will revive a policy of trying persons before special military tribunals. (The Supreme Court ruling simply said that Bush could not set up the courts on his own authority).

2. It will, in effect, revive the CIA “program” of “alternative interrogation procedures.”

3. It will immunize past actions of government agents from criminal prosecution.

Given all this, the best thing that can happen is for Congress to simply adjourn.