Wednesday, June 25, 2008

My Anthony

First, only a fool would call Justice Kennedy a liberal (frequently conservative blogs in fact do use that label). So let's not get carried away. But in both Boumediene and today in Kennedy v. Louisiana, Justice Kennedy authored a sweeping opinion enshrining the rights to habeas and the right to be free from cruel and unusual punishment. In that sense, he is upholding the traditional conservative (or classical liberal) view of true limited government that has articulated limits in its dealing with its subjects. This is of course to be distinguished from the modern GOP which supports limiting government when it helps those who vote for the other party and expanding government when it crushes those who stand in your way.

Reading Justice Kennedy's recitation of the history of The Great Writ and its importance, I remembered this NPR program where Prof. Volokh made an appearance following the Padilla and Hamdi decisions. There, he argues that the decision can be carried to far, to the point where during WWII Nazis could have filed habeas petitions and clogged our courts. (See also this post describing the hypo). Listen to it starting around the 25 minute mark. It's really fascinating (e.g., "If the actual war in Iraq continued, we may have taken thousands of prisoners"). I wasn't even a law student at the time, but I realized that the hypothetical only makes sense if you accept the administrations view that it can create a group of people who are not entitled to any rights, hold them indefinitely, deprive them of their right to counsel, to confront witnesses, to torture them, etc. If, however, common article III and other provisions of the GC apply to those who fight even out of uniform, then their status must be determined by an impartial tribunal. I do wonder where Prof. Volokh's views lie now. Four years have passed, half the prisoners in GTMO at the time have been released, mistreatment of prisoners ran rampant, there has not been any effective means of fairly determining the status of the prisoners, the GWOT is not anywhere near ending.



Anonymous Anonymous said...

All I think Volokh was pointing out is that the Geneva Convention and the Constitution are different sources of rights with different remedies. The hypo makes sense if you believe that enemy combatants have Geneva Convention rights but not full constitutional rights.

No one has made the argument that the only way to satisfy the Geneva Convention is with an Article III court (which is not to say that it may be appropriate to have the Article III courts hear cases when the forum provided to satisfy the Geneva Convention is so grossly inadequate).

I think equating Volokh's view with an approval of torture is irresponsible. Torture isn't just prohibited under US statutory and constitutional law, but also under the Geneva Convention. However, it is not at all apparent that the Geneva Convention conveys the right to counsel or confrontation for enemy combat status review tribunals.

I think I can best sum up your error as the fallacy of the excluded middle / false dichotomy. You can not favor full Article III review with full constitutional rights for every single troop captured by the the US administration in the time of war without approving of torture. Suggesting otherwise is non-sensical.

6/27/2008 7:28 PM  

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