Every June since 2002, Slate Magazine has engaged in an online "Supreme Court Roundup" (which they call a "Breakfast Table") during the last week of the Court's term, hosted by generally liberal legal affairs editor Dahlia Lithwick. This year's panel includes liberal lion Walter Dellinger, moderatish-Establishment seeming ex-Slate publisher Cliff Sloan, and "good" conservative DOJ whistleblower Jack Goldsmith.
Tomorrow is the last day of the 2007-2008 term, with major decisions on gun control, capital punishment (for rapists who did not kill), and punitive damages (more on the Exxon Valdez case) yet to come. Yesterday, nothing particularly interesting (to a general audience, at least) came out, which meant that they have been looking for filler. That filler has been commenting on Boumediene, the habeas corpus case.
I expect that I'm not the only one reading it; this diary is for our commentary on what has happened so far, before the gun case and its controversial companions explode onto the scene.
By the way: using the traditional method of determining who will write a given opinion remaining at term's end, it appears that Justice Scalia will likely author the Heller opinion on gun control, which means that it will be a victory for gun rights activists and probably an expansive one, unless his colleagues hold him back by denying him enough votes for a strong holding, in which event each distributed copy of the slip opinion may well be individually bathed in his own spittle and froth.
By DKos standards, I would probably be considered a fairly moderate legal scholar (if I can call myself that at all.) By the standards of Slate I would probably be deemed a flaming radical, albeit one with about a millionth of the accomplishments of someone like Walter Dellinger (who argued in all three of the remaining cases to be decided tomorrow and who is probably pre-loading himself with analgesics for what will no doubt be a trying day.) So my perspective will be a little bit corrective, but mostly elaborative.
(1) Did Boumediene matter?
Dahlia Lithwick began this year's exchange by noting that Justice Scalia went on Charlie Rose this past week to reiterate his dissenting view from Boumediene that:
Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.
Justice Roberts, is is later noted, did not think that Boumediene would have much practical effect on the lives of the detainees.
Jack Goldsmith is of two minds on the importance of Boumediene. He begins:
On my own first reading of the case, I was drawn to Justice Scalia's view. The majority opinion by Justice Kennedy (for whom I clerked in the 1990 term) is extraordinary in its claims of judicial power during war. The court for the first time confers constitutional habeas corpus rights on alleged enemy prisoners captured and detained outside the United States during war. These rights are much more generous than anything contemplated by the international laws of war. More amazingly, for the first time during a war, the court invalidated a military measure—a statute that stripped habeas corpus in lieu of detention review by a military tribunal and the D.C. Circuit—that had the support of both Congress and the president. The decision only extends judicial review of military detentions to Gitmo, but the court hints that its writ might go wherever the military goes, depending on the circumstances. And the court suggests that alleged terrorists may get unprecedented access to lawyers, witnesses, and classified information and adds that "more may be required."
He later casts his lot with Roberts:
After reading Boumediene a few times, however, I doubt that Justice Scalia's worst-case scenario will come to pass. Because at the end of Justice Kennedy's opaque opinion, no doubt in response to the fierce dissents, he walks away from its more burdensome implications. He notes that "accommodations can be made to reduce the burden habeas corpus proceedings will place on the military." He acknowledges (citing a pro-government state secrets case) the government's "legitimate interest in protecting sources and methods of intelligence gathering." He insists that "the law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." And he states (again citing a famously pro-government precedent) that "in considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches."
And he concludes by, well, equivocating:
In truth Boumediene could turn out to be a huge deal or not a big deal at all; the court leaves open almost all possibilities except the elimination of some form of habeas review over Gitmo detentions. I think the decision will, over time, come to look like the court's other terrorism decisions—Hamdi (the 2004 case that upheld the president's power to detain a U.S. citizen enemy combatant but imposed modest due process constraints) and Hamdan (the 2006 case that invalidated the president's military commissions but invited Congress to reconstitute them, which it did). Both of these cases were originally viewed as stinging defeats for the president that undermined his war-on-terrorism policies. Over time, they came to be seen as gentle nudges by the court to the president and Congress to work together, leading to improvements in the quality of our counterterrorism policies from the baseline of 2001.
I have to say that I'm appreciative of what Goldsmith did to try to preserve the Constitution at the Office of Legal Counsel, but the above analysis suggests to me that he does not fundamentally get the importance of Boumediene, which I can sum up in one sentence: the importance of Boumediene is that it did not turn out the other way. That's it. No, like Hamdi and Rasul and Hamdan before it, it was not decisive; it did not resolve the issues at hand. While a progressive resolution of those issues would have been welcome, it would also have gone far beyond what was at bar before the Court, and it would have taken a situation in which there are legitimate interests on both sides and possibly mangled it, becoming subject to legitimate as well as illegitimate criticism from the Right.
What Goldsmith should (and frankly, given his history, should already) realize is this: each of these cases has been a rifle shot aimed directly at the heart of our Constitution. Each time, the shot has missed. That is what's important. They only have to hit the target once, and this time they got very close -- within one vote, in fact. But while Boumediene decided the correct way may not say or do much, Boumediene decided the wrong way would say and do immense violence to our system of government. So: did Boumediene matter? Duh.
Lithwick takes up Goldsmith's argument about the proper balance between allowing "false positives" (innocents punished) and "false negatives" (guilty released), arguing that one wanted a fair balance between both sorts of error, and that we also have to pay due respect to our Constitutional principles. Goldsmith agrees, as is only appropriate, because the notion that justice has the task of balancing these two interests is pretty much a truism. It would not be considered significant enough an insight to belong in Slate's discussion at all -- except that the participants were filling space as sportscasters do when trying to fill time by trying to gab their way through a rain delay without losing the audience.
But let's take a closer look at this problem anyway. (After all, there was little other news to talk about.) Certain people with Psychology and Engineering backgrounds (and probably others) will recognize this as the old problem posed in "Signal Detection Theory," where we adjust our decision criterion (say, for determining guilt) so as to balance these two kinds of error based on the relative harm we associate with each.
Of course, this theory notes that there is a way out of at least some of the problem, and that is to increase the sensitivity of the instrument. This is an additional reason why the non-rights-respecting rules of executive detention are obnoxious: allowing hearsay, denying effective assistance of counsel, and the like decrease the sensitiveity of trial as intrument. This is, as they say, No Accident: remember that military officials said brazenly that the goal of the hearings was not to acquit anyone. One eliminates false negatives at the risk of accepting any number of false positives. And that brings us to Justice Scalia.
(2) Scalia, Empty of Grace
This section may sound like a pander to you all, but it is heartfelt and I'm going to work hard to justify it: Justice Scalia should be impeached. He fundamentally no longer gets, if he ever did, what it means to administer justice. He has been driven mad by the prospect of terrorism and he is no longer fit for his position.
It is true, as Jack Goldsmith stated, that one can argue for a fair balance between the prospects of letting innocents languish in prison versus letting the guilty go free. ("Better that ten guilty persons escape than that one innocent suffer," is known in legal cicles as the "Blackstone Ratio," after the famous British jurist, according to this interesting piece by Alexander Volokh, brother of conservalibertarian legal imp Eugene Volokh.) But for Scalia, there no longer seems to be any balancing to be done: there is only threat and the need to eliminate threat. Scalia, who has actually cited the torture-porn show "24" in oral argument to justify his positions, has taken leave of any of the sense of proportionality that undergirded Blackstone's statement.
How can he do this? Well, he seems to understand that he could not do it if it were Americans at issue. We can do it, he apparently thinks, because we're dealing with non-Americans in Gitmo (and elsewhere, let's not forget), balancing their lives against Americans. If any of these prisoners might harm Americans, then Scalia has no problem with the obscene injustice of the permanent preventative detention without trial of those who may be actually innocent.
Now, here's the problem with that -- and note that as Article III of the Constitution says that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour," I had better have a big problem to report before arguing for impeachment. Justice Scalia, by his calculus, suggests that the lives of non-Americans are worth literally nothing compared to those of Americans, so far as American law is concerned. He sees no effective limits on the power of the U.S. military (guided by government policy, or perhaps not always) to capture and hold as many foreign threats indefinitely without trial.
This position poses a national security risk. Here we have our most prominent federal Judge staking out of position of complete antagonism to the rights of anyone else in the world -- and, let's recall, the people in Guantanemo and its secret overseas brethren didn't come to U.S.-controlled soil, but were brought there. No one in the world is safe from the U.S. under this formulation. This isn't the sort of stance that can merely be outvoted on the bench; it has to be repudiated.
It is Justice Scalia that increases the odds that "more Americans will be killed" with his irresponsible and scurrilous statements, which can serve as recruiting posters for organizations such as Al Qaeda that wish to convince the rest of the world that the United States accords them no rights and no legitimate interests.
Justice Scalia will argue that some people simply hate us ("for our freedoms," "for no good reason," or -- a more traditional and sophisticated analysis -- because our interests are different from theirs.) He's right: some people do, and always have, and always will. The question we face in today's world is how we prevent those who feel that hatred from attracting ever more followers among those who might or might not join the war against us. I submit that every time we take a stance that totally devalues the rights of non-Americans -- which include, in the case of any innocents held at Guantanemo after literally having been sold to the U.S. military, the right to be left alone in peace -- we increase the number who will join the opposition to the U.S. by many more than the number held "for our safety." Our standing for principles of justice is one thing that protects us in the world. Justice Scalia would take away that protection.
If Justice Scalia were in the legislature, this would bother me, but it would not strike me as fair grounds for the legislative equivalent of impeachment: expulsion. I think that this is a position that one involved in politics can legitimately hold, however offensive I find it.
What we simply can't afford is for someone whose role it is to preserve Constitutional rights -- especially when he is our most prominent Justice -- to hold such a noxious position.
There you go -- there are some positions you would not see on Slate. If you've been reading their exchanges, or if you're moved to do so now, or even if you aren't -- what do you think?