The Tyranny Ratchet
posted by Frank Pasquale
The welter of opinions arising out of the al-Marri decision from the Fourth Circuit still needs to be deciphered by legal experts. But this quote from Judge Diana Gribbon Motz is very disturbing:
Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world.
That last qualifier is important, because, as colleagues of mine at Seton Hall have argued in a recent profile of 517 detainees, “55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda.”
Given the US’s penchant for mass imprisonment, perhaps we should not be surprised by this latest turn of events. But given the brutality documented by Jane Mayer in her book The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, we have many reasons to be worried. (For links to 8 reviews of the book, look in the middle of this paragraph.) Here is Andrew Bacevich’s summary of her findings:
Since embarking upon its global war on terror, the United States has blatantly disregarded the Geneva Conventions. It has imprisoned suspects, including U.S. citizens, without charge, holding them indefinitely and denying them due process. It has created an American gulag in which thousands of detainees, including many innocent of any wrongdoing, have been subjected to ritual abuse and humiliation. It has delivered suspected terrorists into the hands of foreign torturers.
Under the guise of “enhanced interrogation techniques,” it has succeeded, in Mayer’s words, in “making torture the official law of the land in all but name.” Further, it has done all these things as a direct result of policy decisions made at the highest levels of government. . . . .Mayer substantiates [these facts] in persuasive detail, citing the testimony . . . of military officers, intelligence professionals, “hard-line law-and-order stalwarts in the criminal justice system” and impeccably conservative Bush appointees who resisted the conspiracy from within the administration.
George Lakoff bitingly accuses a somnambulent press of ignoring nearly all of this in order to create a comforting cultural frame for our actions:
[We] have a cultural narrative — basically on the hero-villain structure. The villain in this is Ahmadinejad who is inherently evil… It’s a dangerous world out there, so [hawks] will say. So the question is, ‘What do you do?’ and the answer, in the hero/villain plot structure, is the hero has to fight the villain… The assumption is that we’re moral and anything we do to fight this villain is going to be moral, and that could be utterly ridiculous. We could create utter catastrophe over there, but the story is what matters in the public mind… and if we stick to it, and we’re virtuous, and we’re strong, we’ll win.
Perhaps we would do better to consult the histories of Tacitus for a more apt narrative. Except for some wayward Christian soldiers, religious voices would caution us that it’s always dangerous to assume that “anything we do to fight” will be moral. For example, the Pope presciently anticipated the title of Mayer’s book:
As a Cardinal, [he] was a staunch critic of the U.S. led invasion of Iraq. On one occasion before the war, he was asked whether it would be just. “Certainly not,” he said, and explained that the situation led him to conclude that “the damage would be greater than the values one hopes to save.”
And as Glenn Greenwald notes,
Justice Scalia, dissenting in Hamdi, warned that allowing the President to hold U.S. citizens as “enemy combatants” is to vest the President with the ultimate power of tyranny, exactly what the Founders most wanted to prevent: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
We can only hope that the more extreme dimensions of the al-Marri decision will be reversed by a Supreme Court wary of absolute power. But as Tacitus noted, once some forms of tyranny are entrenched, they affect culture and politics in lasting ways.
July 20, 2008 at 2:31 pm
Posted in: Constitutional Law
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Responses (12)
Nah - July 20, 2008 at 5:04 pm
Motz wrote the majority opinion in al-Marri.
To Nah - July 20, 2008 at 5:29 pm
Did she write the majority in the en banc, or just the original panel decision?
Bobby Chesney - July 20, 2008 at 10:49 pm
If I’m reading you correctly, Frank, you are concerned in about al-Marri from a separation of powers perspective. In particular, you are worried that the decision favors executive unilateralism in the form of unchecked discretion to decide whom to subject to military detention. I don’t think the decision should trigger that concern, however.
The majority of the court (Motz writing for 4, plus Traxler) not only agreed that federal courts have habeas jurisdiction to review the legality of al-Marri’s detention, but also that al-Marri may not have received adequate process during his habeas review. It is true, of course, that a different majority of the Court agreed that al Marri could be subjected to military detention if the government can come forward with sufficient evidence that he is an al Qaeda operative, but the important point for purposes of your separation of powers concern is that a federal judge will determine whether the government has met that burden.
Bobby Chesney - July 20, 2008 at 10:50 pm
If I’m reading you correctly, Frank, you are concerned about al-Marri from a separation of powers perspective. In particular, you are worried that the decision favors executive unilateralism in the form of unchecked discretion to decide whom to subject to military detention. I don’t think the decision should trigger that concern, however.
The majority of the court (Motz writing for 4, plus Traxler) not only agreed that federal courts have habeas jurisdiction to review the legality of al-Marri’s detention, but also that al-Marri may not have received adequate process during his habeas review. It is true, of course, that a different majority of the Court agreed that al Marri could be subjected to military detention if the government can come forward with sufficient evidence that he is an al Qaeda operative, but the important point for purposes of your separation of powers concern is that a federal judge will determine whether the government has met that burden.
Orin Kerr - July 21, 2008 at 12:13 am
FWIW, I agree with Bobby. I would also add that I thought Judge Motz’s rhetoric was rather misleading in light of that point.
Oh snap! - July 21, 2008 at 8:07 am
I thought Judge Motz’s rhetoric was rather misleading
I thought Judge Motz’s rhetoric was what Frank found disturbing.
Oh snap! - July 21, 2008 at 8:09 am
I thought Judge Motz’s rhetoric was rather misleading
I thought Judge Motz’s rhetoric was what Frank found disturbing.
marty lederman - July 21, 2008 at 9:24 am
Bobby/Orin: I don’t agree with everything in the Motz opinion, but that sentence is both correct and not misleading. The *substantive* holding of the court is exactly as Judge Motz says. And that’s a very bold, broad detention power, because it extends to U.S. persons, including citizens, and to persons interdicted in the U.S. — including some who have never “borne arms against the United States anywhere in the world.”
Frank did not write that he was “worried that the decision favors executive unilateralism in the form of unchecked discretion to decide whom to subject to military detention.” He expressed worry that, even as subject to judicial review, the detention authority recognized by the court is extremely broad. He also expressed worry that the detentions in question are being done for purposes of coercive, often illegal, interrogations — and that’s correct, too. Al Marri is a case in point: He was *already* in custody, awaiting trial, when the President ordered him transferred to indefinite, incommunicado military detention. Thus the military detention was *not* for purposes of incapacitation — it was for purposes of coercive interrogation. (If I were Motz, I would have made much more of this point — she discusses it on page 38, note 19.)
Bobby Chesney - July 21, 2008 at 12:16 pm
Perhaps you are right that I’ve mistaken Frank’s concern, Marty, though the closing quotation from Greenwald/Scalia referring to “imprisonment at the will of the executive,” followed by Frank’s reference to “absolute power,” would suggest to a reader unfamiliar with the decision that Al-Marri somehow endorses a no-judicial-review position (Sunday’s NYT editorial on Al-Marri does precisely the same thing, incidentally).
The real issue is not the absence of judicial review, of course. Rather, the real questions are (i) whether the criteria for military detention to be enforced by judges via habeas review do enough work in cabining the scope of military detention authority (or if instead they are so broad that there really isn’t much point to the judge’s review), and (ii) whether the procedures to be employed on habeas review provide sufficient assurances against false positives to make the process fair and legitimate. In your restatement of Frank’s post, his aim was simply to highlight that first concern. Fair enough if so.
Orin Kerr - July 21, 2008 at 4:00 pm
Marty,
Of course, you believe that the Executive should be able to break into the home of a U.S. citizen, rifle through their belongings, place them under arrest, and detail them indefinitely, even if they love America and are decorated U.S. war heroes who would never dream of doing anything even remotely unpatriotic.
And so do I — *If* the government has warrants, and proves its case beyond a reasonable doubt at trial that the person committed a crime pursuant to a valid statute that authorizes the sentence. (That is, the question isn’t the power, it’s the circumstances in which the power can be legally excersized that matters.)
Marty Lederman - July 21, 2008 at 5:32 pm
Bad analogy, Orin. This indefinite detention not only does not require a criminal conviction — it doesn’t require that the detainee be suspected (even by the Executive) of having committed any crime at all.
You might think that’s ok — but it sure ain’t business as usual.
Orin Kerr - July 22, 2008 at 2:40 am
Marty,
Your comment reminds me of the story attributed to Winston Churchill in which Churchill is drunk and asks a woman if she would sleep with him for an enormous sum of money. When she replies that she would, he drops the price dramatically, and the woman is deeply offended, asking, “what kind of woman do you think I am?” Churchill responds, “Madam, we’ve already established what kind of woman you are. Now we’re just haggling over the price!”
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