Is the Military Commission Act Constitutional?

Jack Balkin and Jonathan Hafetz have thoughts here and here.

There are a number of complicated questions to unpack:

1. Does the Constitution guarantee some minimum amount of habeas protection? Justice Scalia says no in his dissent in INS v. St. Cyr. Others say yes.

2. If it does require some minimum habeas protection, what does the constitutional minimum look like? The 1789 version of common law habeas that applied in the King’s Bench? Or something more robust?

3. Does constitutional habeas, if it exists, extend to aliens?

4. When can Congress suspend constitutional habeas and for how long?

5. Relatedly, does due process inform what constitutes “constitutional habeas” and, at the same time, limit Congress’s suspension power?

Balkin avoids addressing due process and equal protection arguments against the MCA, noting they require much more heavy lifting than a blog post allows. I’m undeterred by his common sense, however, and below I raise a set of preliminary questions about these claims:

1. Equal Protection. One argument against the MCA’s suspension provisions is that they apply to aliens, but not to American citizens, thereby violating the aliens’ Fifth Amendment equal protection rights. However, its an open question whether equal protection applies extraterritorially to nonresident aliens. It would odd if it did, since foreign policy by nature must prefer and protect the interests of citizens at the expense of those beyond our borders.

That intuition is confirmed by case law. In the Insular Cases, which arose out of legal challenges to Congress’s disposition of conquered territories acquired in the Spanish-American War, Justice Brown said that “the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.”

To be sure, the Court suggested that there “are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.” And in Rasul v. Bush, the plurality indirectly referred to this dictum (by citing Justice Kennedy’s reliance on it in his United States v. Verdugo-Urquidez concurrence), suggesting the plurality believed some fundamental unenumerated constitutional rights may apply to Guantanamo.

Even so, by recognizing that Congress is entitled to prescribe the “status” of noncitizens in treaty-acquired territory, the Insular Cases imply that heightened equal protection review (i.e. strict scrutiny)—which presumes that classifications are strongly disfavored—doesn’t apply in Guantanamo. Moreover, the Insular Cases’ emphasis on the rights of “inhabitants” suggests that those rights attach not to territory but to pre-annexation residents of the territories—suggesting that even minimum “rational basis” equal protection principles might not apply to those who merely transit through or are forcibly detained in Guantanamo, but who have not voluntarily chosen to reside there. Finally, past Courts have repeatedly cast doubt on claims that the Constitution extends to nonresident enemy aliens in In re Yamashita and Johnson v. Eisentrager.

The equal protection claims of lawful resident aliens are equally problematic. Beginning with the Alien Enemy Act of 1798, Congress has granted resident aliens far fewer rights against executive detention than citizens. And, at a minimum, any equal protection claim must contend with the Court’s own haphazard approach to strict scrutiny of resident alienage classifications, which does not apply to deportation proceedings or to certain “constitutional prerogatives” of a democratic government (see, e.g., Sugarman v. Dougall), among which includes the conduct of foreign relations. See Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (“any policy toward aliens is vitally and intricately interwoven with … the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”).

2. Due Process. Another argument against the MCA is that it violates due process by denying persons an independent pre-trial judicial hearing determining whether they are a citizen or an alien.

In Verdugo, Justice Kennedy, writing in concurrence, suggested that due process is among the principles of “natural justice” that apply to aliens abroad. After Yamashita and Eisentrager, that may be dubious when applied to alien prisoners of war. But Hamdi v. Rumsfeld held that due process also requires that a “citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” That may imply that not only citizen-detainees but detainees asserting citizenship status have a due process right to an independent hearing on their classification.

The force of this argument, though, is undercut by the fact that the Hamdi Court took care to underscore that habeas hadn’t been suspended before reaching the due process claim—suggesting, in turn, that the Court believed suspension authorizes detention without any process.

3. The Non-punishment/Punishment Distinction. While it grants limited appellate review of Combatant Status Review Tribunal’s determination of status, the MCA and Detainee Treatment Act forbid any review of the CSRT’s factual findings, which the MCA purports to make conclusive.

It might be argued that while the Suspension Clause authorizes Congress to suspend challenges by citizens or aliens to detention (the issue in Hamdi), a remedy must remain available to challenge the threshold factual determinations of who may be subject to military trial. The theory is that the Suspension Clause allows the executive to preventatively detain people without judicial process—but not to put them on trial without some minimum process.

The theory finds some support in Ex parte Milligan, which held that suspension doesn’t entitle the executive to try and punish citizens in an unlawful way. See, e.g., Ex parte Milligan, 71 U.S. 2, 125 (1868) (“Unquestionably, there is then an exigency which demands that the government, if it should see fit … should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law.”). See also Hamdi v. Rumsfeld, 542 U.S. 507, 593 (2004) (Thomas, J., dissenting) (the “punishment-nonpunishment distinction harmonizes” the suspension precedents). Milligan recognizes, in effect, that Congress can’t suspend the use of a habeas to challenge certain features of executive trials.

However, Quirin, Yamashita, and Eisentrager have subsequently limited Milligan’s application to enemy combatants, by rejecting claims that enemy alien combatants and enemy citizen combatants are generally protected by the Bill of Rights or federal statutory law. However, a narrow bit of Milligan may survive. The combatants in Quirin and Eisentrager admitted they fell within the class of individuals that the political branches had determined to try; instead, they challenged the constitutionality of the trials themselves. Hence these cases don’t squarely extinguish a claim that due process requires a minimal, non-suspendable, habeas review of facts on which jurisdiction of military commission trials are premised.

To sum up, its arguable, based on a synthesis of Milligan and subsequent cases, that Congress (1) cannot limit detainee’s use habeas to challenge his citizenship status when—and only when—(2) the detainee is to be put on trial before a military court, and (3) citizenship of the detainee precludes the military court’s legal jurisdiction to try and punish. This argument is probably best framed as a due process right that belongs to citizens, that informs the constitutional core of habeas, and that imposes an external limit on Congress’s suspension power.

The claim is complicated a number of questions, including about how to define the constitutional core of habeas. Some argue that core extends no farther than eighteenth century common law practice, which forbid courts from determining the facts giving rise to detention. See, e.g., INS v. St. Cyr, 533 U.S. 289, 343 (2001) (Scalia, J., dissenting) (“in this country, until passage of the Habeas Corpus Act of 1867, and in England, the longstanding rule had been that the truth of the custodian’s return could not be controverted”). If that were true, then Milligan was wrong and the MCA—which permits detainees to appeal of pure questions of law to the D.C. Circuit–does not “suspend” the constitutional “core” of habeas at all.

The upshot: The Military Commission Act is not patently unconstitutional—but it is hardly on uncontrovertible constitutional footing, either.

Are Environmentalists Stark Raving Mad?

You might think so by reading the daily environmental trade press. Case in point – in today’s Greenwire (subscription required), we’re informed of a new study published in the Proceedings of the National Academy of Sciences (apparently, not yet posted online) about fish farms. The authors of the paper believe that sea lice from farmed salmon caused a 9 percent to 95 percent mortality rate in wild juvenile salmon populations in British Columbia. The National Oceanic and Atmospheric Administration, however, is not persuaded, and notes that the study does not prove the point and that plenty of other studies have found to the contrary.

Now, set aside any doubts. Let’s just assume that sea lice from farmed salmon migrate to wild salmon and that it may – but may not – kill them. How do you feel about that? Now, my reaction is “Hmm. OK. I’ll keep an eye on that. Now, what’s for lunch?” But I’m an enviro policy wonk and I’m paid to care. Most people would probably not give a damn one way or the other. After all, there’s a lot of things in this world to worry about, and sea lice on salmon just isn’t something worth spending more than, say, a minute on at most.

But for environmentalists, the new report is an excuse for political road-rage. “This is an atrocity, this should just piss people off,” claims Prof. John Volpe, co-author of the study.

An atrocity? You mean, like what happened in Lancaster the other day, or what is going on today in Darfur? That’s a little extreme, isn’t it? And how reasonable is it to go to the water cooler with teeth grinding and nostrils flaring after hearing of salmon and sea lice?

“What’s the matter, Jerry? You look pretty mad.”

“I’ll tell you what’s the matter! Sea lice from commercial aquaculture is finding its way to wild salmon populations, and, by God, it REALLY TICKS ME OFF!!”

To quote Jerry Seinfeld, who are these people? Well, Greenwire has an answer to that too (but you will need a subscription to read it). According to “The American Environmental Values Survey,” a new report released by ecoAmerica (an environmental research firm), environmental groups reach out to roughly the same 3 million people, which represent about 1 percent of the population, and surveys repeatedly show the environment is a top priority for roughly the same small percentage of the public. Only 44 percent of people are willing to label themselves “environmentalists,” only 48 percent think that environmentalists are “practical,” and 44 percent described environmentalists as “self-righteous” (ONLY 44 percent??).

Keep this in mind as we enter the political season. The Greens are a pretty weird – and a pretty overrated – voting block.

Counsel of Sanity

If someone asked you to play Russian roulette and told you that you had only a 6 percent chance of not shooting yourself, would you play? Not if you were sane. Yet that’s exactly what some conservatives, led by the Thomas B. Fordham Foundation, are asking people to do with their children’s education.

On National Review Online today, writing in reply to a piece I had there last week, Fordham vice president Michael Petrilli argues that I was foolish to assert that standards set by government are doomed to failure, and that school choice is the only way to get meaningful standards and accountability in education.

Sure, he says, choice is valuable – critical, even – but so too is government standard-setting and measuring. “In order for any market to work effectively, consumers need good information,” he writes. “If we want to know whether schools actually ‘add value’ to their students, we need rigorous tests tied to meaningful academic standards, plus a sophisticated ‘value added’ analysis system – the whole standards-based reform kit-and-caboodle.”

Really? Consumers need government to set the standards and tell them whether the things they buy work? Is that really how the unwashed masses find good cars, fast computers, clothes that fit, newspapers to read, companies to deliver packages on time, and so on?

Of course not! Consumers are able to get a seemingly infinite array of excellent goods and services because the market assures it.

For one thing, suppliers of goods and services have to offer items that consumers want or they’ll eventually go out of business. But that’s just the beginning. In a free market, most people don’t have to know very much about the products they want in order to get something excellent because experts, such as those at Consumer Reports, Auto Week, PC Magazine, and so on, make money by evaluating the products for them. Plus, of course, consumers can talk to friends and neighbors about their experiences with different products and service providers, as well as use their own experiences, to inform their choices.

Unfortunately, their inability to understand how market standards and accountability work is not the most astonishing thing about Petrilli and other conservatives’ sudden faith in federal education standards. No, the most astonishing thing is that they are well aware of big government’s constant failures, but call for federal standards anyway.

Here’s Petrilli on the state standards movement: “Unfortunately, most states have botched standards-based reform by setting the bar too low.”

Here he is on No Child Left Behind: “The [low standards] problem is aggravated by No Child Left Behind, which demands that all students reach ‘proficiency’ by 2014 but lets states define ‘proficiency’ to their low levels. Hence, NCLB has created a race to the bottom.”

How about the voluntary national standards we tried in the mid-1990s? Here’s Diane Ravitch – who yes, I know, supports national standards – in Left Back: A Century of Battles Over School Reform: “The abortive attempt to create national standards revealed the deep fissures within academic fields, as well as the wide gap between avant-garde thinkers in the academic world and the general public.”

By Petrilli and Co.’s own accounts, it is obvious that the track record of government standards-setting has been pathetic. What’s to blame? Politics, pure and simple. Invariably, the people who would be held accountable by high standards – teachers, administrators, and education bureaucrats – have fought ferociously to keep standards as low as possible, while parents have been ignored. It’s no wonder: Because their very livelihoods depend on maintaining the status quo, education special interests spend oodles of time and money on lobbying and political campaigns, while parents, who have to worry about their own jobs, children, and countless other concerns, can’t possibly mount strong and sustained political efforts to get the standards they want.

Given history and political reality, Petrilli and other like-minded conservatives have very few government standards successes to hang their hats on. Indeed, that’s why they’ve had to ask the country to play 6 percent roulette: “Of course, getting national standards and tests right is no small feat,” Petrilli acknowledges. “But McCluskey is wrong to insist that it cannot be done. After all, California, Massachusetts, and Indiana managed to develop excellent standards over the past decade. If it can happen in Sacramento or Boston, it could happen in Washington, D.C., too.”

So, because three out of fifty states have gotten standards right, we should gamble on the feds getting them right, too, and give Washington the authority to set the standards for every public school in America? That’s crazy.

Maybe if we tweak Petrilli’s statement, its insanity will be more clear: “Getting national standards and tests right is no small feat. And McCluskey is right to insist that it almost certainly can’t be done. After all, Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas – and the list goes on - haven’t managed to develop excellent standards over the past decade. If it can’t happen in Montgomery or Juneau, it probably won’t happen in D.C., either.”

Looked at that way, Petrilli’s reliance on the success of three states to justify national standards is a little frightening. And, it turns out, even the three successes are at best cautionary tales: California only improved its standards after it had adopted disastrous ones that dumped it into the bottom of all states academically. Massachusetts’ standards are under constant political threat and could easily be dismantled. Finally, no matter how good Indiana’s standards are, between 2002 and 2005 the share of Hoosier 4th graders scoring at or above “proficient” on the National Assessment of Educational Progress reading exam dropped from 33 to 30 percent, and 8th graders at or above proficient fell from 32 to 28 percent.

In his op-ed today, Petrilli says I offered “counsel of defeat” last week when I told conservatives to give up on national standards and get back to fighting for school choice. In light of political reality, it is clear that he is wrong. Mine was not counsel of defeat – it was counsel of sanity.

Dust in the Wind

For those of you still under the impression that federal environmental regulators are sober-minded professionals who cooly and reasonably guide regulatory policy in the public interest with both emotional detatchment and common sense, I offer you this story, which reports that farmers will now be required to control the amount of dust kicked up from their fields.

Iowa Senator Charles Grassley was quick to tag the rule profoundly “idiotic.” While I agree, it’s hard to muster much sympathy for farmers given the economic assault they have launched on non-farmers via federal and state ethanol subsidies and consumption mandates. So in this case, I root for mutually assured destruction.

White Coats Über Alles

Last week, a group of scientists announced the formation of a new coalition – Scientists and Engineers for America (SEFA) – to campaign for politicians “who respect evidence and understand the importance of using scientific and engineering advice in making public policy.” While the group professes to be nonpartisan, “the group will discuss the impact the Bush Administration’s science and technology policies have had in their fields and the need for voters to consider the science and technology policies by candidates in this year’s mid-term elections.”

I imagine that most people would agree that, in the words of SEFA, “Scientists and engineers have a right, indeed an obligation, to enter the political debate when the nation’s leaders systematically ignore scientific evidence and analysis, put ideological interests ahead of scientific truths, suppress valid scientific evidence and harass and threaten scientists for speaking honestly about their research.” But there’s more than a whiff of the sentiment here that Americans should just shut up and let the guys in the white coats run the country.

What irks me about the increasing bossiness of the self-appointed guardians of “science” is the lack of humility about their own profession.

First, there is disagreement among scientists about many of the issues they are concerned about – like global warming – and it’s not clear even to scientists exactly what is going on in the atmosphere. Assertions to the contrary are simply dishonest.

Second, scientists of all people should know that scientific truth is not determined by a show of hands. Theories stand or fall on hard data and evidence, not majority votes within politicized professional bodies. Virtually every single thing that the scientific “consensus” believes today was once a fringe minority perspective. Would we ever have arrived at our present intellectual location had minority dissenters been run out of town on a rail or burned at their professional stake? Scientific theories demand criticism to fulfill their promise. Scientists should welcome a public “kicking of the tires” and not try to punish those who engage in it.

Third, scientists might be able to better inform society about the facts of various matters, but they should not be allowed to dictate to society how it deals with those facts. The judgment of scientists regarding the proper trade-offs between this or that set of policy options is no better than yours or mine. In short, they have a lot less to contribute to the policy world than many people apparently think.

Finally, asking scientists to settle our policy problems for us inevitably politicizes science and corrupts the entire endeavor.

So to SEFA, I say “zip it.”

War and Terrorist Recruitment

On first reading, I could have sworn Andrew Coulson was saying that it’s cheating to point out that the Iraq War is defeating its own stated purposes. The recent National Intelligence Estimate doesn’t matter because “efforts to create a free and democratic Iraq are ongoing — the war is still in progress”? Well, efforts may still be ongoing three years and 2,500 more dead soldiers hence; just when will it be permissible to point out that the Iraq war has given Al Qaeda a recruitment boost?

The second time through, my reading comprehension improved, and now I take Andrew to be objecting to something like the following syllogism:

If a campaign in the war on terror increases terrorist recruitment while that campaign is ongoing, the campaign has failed.

War X has increased terrorist recruitment.

Therefore, War X has failed.

OK, if that’s the argument on offer from “antiwar liberals,” then I agree that it’s a faulty one. You could use it to condemn the war in Afghanistan, which, I think on balance probably improved American security despite perhaps enhancing terrorist recruitment. And it doesn’t do the work it needs to do to refute the case for war with Iraq. After all, if Iraq turns into something that passes for a liberal democracy, and if that in turn causes a reverse domino effect in the Middle East, transforming other autocracies in the region into (relatively) free and open societies, and if that in turn dampens the terrorist threat by replacing hatred with hope–then the short-term costs in terms of enhanced terrorist recruitment will turn out to have been worth it.

And I guess that’s right. But if the mere description of that Rube-Goldbergesque chain of causation doesn’t make you skeptical about whether the benefits are ever going to outweigh the costs, I don’t know what will. After all, it’s really, really hard to turn societies into liberal democracies through military nation-building, especially when those societies, like Iraq, are poor, violently heterogeneous, resource-cursed, and lack an independent middle class. But the liberal part of creating liberal democracies—the part that we don’t know how to do—may be essential if you can’t be talked out of embarking on this sort of mad enterprise. Because given popular support for Hamas, Hezbollah, and Muqtada al-Sadr in the Arab world, expanded suffrage all by itself may well make the problem worse.

Call it hindsight bias if you want, but it seems to me that the Wolfowitzian case for the Iraq war was never a promising bet. Even supposing the federal government had the world-transforming competence to reliably create liberal democracies by force of arms, I’m still not sure how that solves the terrorism problem. There was always something odd about conservatives jumping from “they hate us because we’re free” to “if we make them free, then they won’t hate us.” What was the evidence for that proposition? Even advanced liberal democracies produce terror threats.

But whether or not it was a bad bet from the start, it certainly looks like a losing proposition now, with violence raging across Iraq and no clear sign of the democratic future promised by the administration. Given all that as a backdrop, is it possible that antiwar liberals aren’t making the simplistic “recruitment up/war bad” argument that Andrew attributes to them? Isn’t it possible that they’re saying “given that the war is enhancing terrorist recruitment—and that there is no plausible account of how it’s going to dampen terrorist recruitment in the future—the Iraq War is a failure”? They may be leaving the parenthetical unstated, but perhaps they can be excused for doing so, given current events in Iraq and the failure of the war’s remaining defenders to construct anything like a convincing case for how this is all going to make us safer in the end.

The case that the benefits of the war aren’t coming has been clearly and abundantly made. By now it’s fairly well understood. If opponents of the Iraq War don’t feel the need to restate that case each and every time they point to things like the NIE, it seems to me less an error of logic than a sense that one shouldn’t belabor the obvious.