Why Lawyers Are a Lousy Attack Weapon

Being

• late to the party
• many time zones away
• seriously jet-lagged
• somewhat inebriated (2 beers will do that to me on an empty stomach when jet lagged)

it is probably unwise to post anything at all, but I'm so happy with the quality of the free wireless link in at the waag here in Amsterdam, provided by the waag society, I can't resist joining in to the debate over Eugene Volokh's suggestion

Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.

Would this tactic be allowed? Well, let's consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn't get their petitions considered).

Like the detainees at Guantanamo, our hypothetical detainees (1) “are not nationals of countries at war with the United States” — our war isn't with their countries, but with insurgencies in those countries. They (2) “deny that they have engaged in or plotted acts of aggression against the United States”; it costs them nothing to deny that. They (3) haven't “been afforded access to any tribunal, much less charged with and convicted of wrongdoing,” partly because there's nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) “in territory over which the United States exercises exclusive jurisdiction and control” — imagine that for security reasons, we need to keep them at a base that's at least as controlled by us as Guantanamo is.

It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.

Litigation will become a tactic of warfare.

First off, the hypo is highly unrealistic. The opinions do not say that foreign soldiers being held as POWs have a right to habeas relief. To my reading, they don't say anything about classic POWs. POWs' rights during a conflict are covered by the Geneva Conventions, and I do not see anything in the current court's opinions that would require additional judicial intervention during the war with the possible exception of a violation of jus cogens (eg. torture)…although that's just my gloss on it, since of course the opinions don't deal with that issue. Indeed, that is one of the critical distinction between the current cases and past ones. [I'm hazier on what happens after the war ends. Could a POW bring a claim alleging unduly delayed repatriation? To answer that I'd need to know how post-war repatriation usually works.]

What this week's opinions say that people whom the administration alleges are connected with hostilities but nonetheless LACK Geneva Convention rights (i.e. the so-called “enemy combatants”), and whom it then wishes to lock up without process or recourse, have a right to some kind of hearing to adjudicate their status and in which they can make the claim that they are being held wrongly. This seems to me like an essential element of basic deceny: if the Red Cross is not there to ensure humane treatment, someone, the courts, has to be. Given recent events, I'm somewhat mystified that this even needs to be said.

It seems to me there is so much less here than meets the eye. As Eugene notes in his third response to his own hypo, in most cases involving people who are not being held either as POWs or as criminal in conformity with the law of the jurisdiction in which they were captured (a class the should include most people who actually commit a violent act), the requirement of a hearing will be met by a military tribunal holding the very status hearing required by the Geneva Conventions themselves, hearings that the Administration has, inexplicably to my mind, refused to hold for the Guantanamo detainees. Once this tribunal reaches a result, we can deal with subsequent attempts to litigate much like we deal with prisoner habeas today—and that's not real friendly to the petitioners.

The US routinely held in-the-field initial hearings during both the Vietnam War and the first Iraqi war, and I have yet to read a single suggestion that doing so impacted the war effort. These hearings were not held in Iraq II, presumably because the muscular Bush faction didn't want any of that namby-pamby lawyer stuff. That was an error.

Congress has a role here too. In the unlikely event that a future administration feels a need to hold 50,000 people as “enemy combatants” and we think that this alone isn't a sign that the executive has gone nuts, then Congress can provide a system by which any cases they might bring will be adjudicated.

Last, although I hate making this argument, I have to note that the Mathews test that the Supreme Court relied in the Hamdi case itself supplies an inelegant answer to the mass-litigation-as-war-tactic hypo. The Mathews test explicitly considers the cost of providing additional process. If there is a danger that there will be mass recourse, swamping the hearing-provider, this itself weighs against the additional process. (Which is why Mathews has no place being used to define the extent of human rights — it's too weighted by its nature in favor of the government interest, too willing to buy into the idea that “the government” has independent interests other than its role as agent of “We, the People”, and that those government interests can be asserted against the People, but that's a different debate…).

I trust if the beer and the time shift has addled my wits, the wonderful commenters who have recently frequented this blog will set things straight.