Thoughts from
San Diego on Law, Politics, and Culture

 
The Padilla case
By Tom Smith

Good post on this on Volokh, including link to PDF file of opinions.

It seems to me Eugene Volokh, and John Yoo (last night on Lerher news hour), get it right on the Second Circuit opinion. It is hard to see why the Congressional resolution authorizing military force did not include the power of military detention. On the other hand, given that it is such a potentially dangerous power when exercised against US citizens on US soil, it seems prudent at least that citizens should have the right to contest their status as enemy combatants before a judge and while represented by counsel. At least until things get much worse, and they might, it is hard to see how this would be inconsistent with national security. Such hearings could be in camera if they involved classified material. E.g., we know Johnny Jihad is part of this plot to release weaponized smallpox at the annual ACLU convention because of the following NSA intercepts . . .

As to the 9th circuit opinion on Gitmo detainees being entitled to lawyers, personal trainers, first run movies, and individual de-lousing kits, I know only what I read in the New York Times and saw on TV, but I can at least share my attitudes. Apparently the decision rests on the base being a U.S. territory, and individuals being entitled to certain rights on U.S. territories. All I know of the law of U.S. territories is that it is very complicated, not at all intuitive and understood by perhaps a half dozen people in the country, one of whom is my friend Gary Lawson at Boston U law school. Perhaps Gary would hazard an opinion? However, the 9th Circuit's opinion on such a question has exactly the same odds of being correct as you have of guessing which way the stock market is going to move. The 9th Circuit could be right. Anything can happen. But it would be a pretty silly result if enemy combatants captured in the field of battle had rights to counsel while the conflict was still going on and while they were being held on a military base not in the U.S. It's possible. If it's true, it's dumb, and Congress should change the law. But the Ninth Circuit saying it is the law, increases the probability of its being so by zero, or perhaps even a negative amount.

A final thought for civil libertarians. I actually do worry about federal agents pounding on my door in the middle of the night and hauling me away under some nebulous authority. Oh, OK, not really very much. But it is easy to imagine this power getting out of hand, especially if there is another big terrorist attack. People who care about liberty should think about what is really necessary to prevent something like a dirty bomb, or my favorite nightmare, a biological attack. If say 50 or 100 thousand people were killed in such an attack, our liberties would be far more threatened than by John Padilla not getting a lawyer. Sometimes the choice is not between a slippery slope and the high ground, but a slippery slope and ground that could give way beneath you at any moment. A dose of Richard Posner's pragmatism is needed here.
posted by thomas at 12/19/2003 09:09:00 AM