There is a long standing paradox in the law. It has been around since the Civil War and it rears its ugly head every time the nation faces some sort of “existential” threat. It takes the form of two mutually exclusive ideas of justice: One idea is to confront and/or punish “the enemy” and the other to act humanely and fairly towards those who are unlucky enough to be the enemy. And as the recent “detainee” cases show, this paradox is indeed part of the existing case law and it does affect the right to a fair trial during times of national threat (i.e., the right to “due process”).
It’s easy enough to understand how this could occur if you stop and think about your personal reaction towards “the enemy” when you saw the Towers come down that Tuesday morning. If you are anything like me, the last thing you thought was: “We’ve got to catch the people responsible for this, give them a fair trial, and then after fairly deliberating on culpability, exact a just punishment.” But now – today, that is – that is exactly what I and I believe most people think. And if you stop to think about it, that is probably exactly how folks reacted when they heard that Pearl Harbor was attacked or when they read that Fort Sumter had fallen. So should it really come as surprise to anyone that this reaction can also be found in the opinions of the Supreme Court? After all, the Court is compromised of justices and they are human too (complete with their own agendas to boot). Justice Frank Murphy, whose seminal dissent in Korematsu should be read by every American at least once (and probably re-read every year), is a good example of this because as truly inspiring as his dissent is, it is a fact that he (begrudgingly) compromised his very high-minded principles in Hirabayashi and Yasui. And that means that he too shares some responsibility for the illegal detainment (and loss of property) of over 110,000 Japanese-Americans for nothing at all during WWII. And there are plenty of other examples of this: Look at how the Chase-court voted during the Civil War and Reconstruction. You’ve got bad decisions like Vallandingham and McCardle and good ones like Milligan, and Yerger. (Although Yerger became a moot opinion when the military finally handed the defendant over to civil authorities).
The one thing these and other cases make crystal clear is that this human way of reacting to threat has worked its way into the law. And that is a bad thing because you can’t have two sets of law – one for when you are afraid and one for when you are not – and also call yourself “a nation of laws.” But to explain how there can be “two sets of laws,” I have to take a step back and point out a couple of things that often get missed when it comes to the Supreme Court. The first is that statute and regulations are just a lot of boilerplate and this boilerplate means only what the Court says it does. And this is something the Court has not failed to use towards its overriding goal remaining a viable and legitimate institution in the public’s eye. The second thing, which is just as powerful as its function of interpreting the law, is the Court’s ability to say nothing at all. This can be as simple as declining to hear a case or deciding a case on something other than its merits. And that is exactly how the Court avoided confronting the Bush Administration’s assertion that it discovered a new category of “enemy” that centuries of jurisprudence had somehow missed (Padilla).
So why does all of that matter to the current “detainee” cases? After all, it appears that the Court is slowly compelling the government to observe the constitution. Well it matters because the Court has a demonstrated pattern of interpreting the law (or saying nothing) in a way that acquiesces to far-fetched and bloated claims of presidential authority in times of threat. And this holds true regardless of whether those claims are couched in the jargon of “military necessity” or the current administration’s arguments, which are beginning to sound a lot like those of Weimar Germany’s anti-republican jurist Carl Schmitt, to me at least.
So as encouraging as Boumediene and the others detainee cases are, the battle over the right to due process is by no means over. Contrary to optimistic assertions that “habeas is back,” I feel it is probably a bit more appropriate to think that she is merely paying us a visit – like a favorite aunt who just came in from out of town. Eventually, she will leave again. There are just too many nasty cases out there that allow the executive to use trials that do not comport with the due process rights prescribed by the constitution, UCMJ, the Geneva Conventions, the laws of war, and/or international law. And none of them have been overturned (e.g., Vallandingham, McCardle, Yamashita, Quirin, and Eisentrager). And this doesn’t even address the Court’s utter dereliction of duty in Padilla. But perhaps more importantly, people in general, and especially in times of threat, are too ready to accept “The-constitution-is-
not-a-suicide-pact-argument
.” You know how that one goes: For the president to save the rule of law, our way of life, our values, et cetera, s/he must break the law. Make no mistake, this tendency is exacerbated by the fact that in times of war or crisis, particularly when it first emerges, people always rally around the president. (In fact, I can’t think of a single society where the folk don’t rally around their leader when facing a threat.) Finally, we have all seen how public sentiment can influence the Court, which is just as concerned with its own “institutional legitimacy” as congress is. In other words, just like congress, the Court will avoid going head-to-head with a president whose “bully-pulpit” is enhanced by the emergence of a war or crisis.
I don’t think any reasonable person would be surprised if the United States suffered future terrorist attacks. And the one thing the experts who study terrorism consistently find is that each new attack has to be worse than the last one for “terrorism” to remain an “effective tool” (from the terrorists’ perspective, of course). And as we all know, even in the best of circumstances, the law can be a hindrance to a president achieving policy objectives. Why wouldn’t that be doubly true with a war policy that emerges under the auspices of some terrible attack like 11 September? Finally, do you have faith in the Democratic leadership to avoid the same excesses committed by greats like Lincoln and FDR (not to mention, the not-so-great, Bush II)?
I simply don’t and here is part of the reason why: When a sense of security returns to the nation, we seem to chalk up the Court’s poor decisions to “war hysteria” or a couple of bad apples (e.g., Scalia). And thus the fundamental problem is never addressed because we are too busy congratulating ourselves for being a “nation of laws” or rolling out the red carpet for our long lost aunt. The fundamental problem is that the judiciary has a “war power” when it comes to how “the enemy” is to be tried and it exercises it in a way that helps it politically – helps it maintain institutional legitimacy, which is much more dependent on ebb and flow of public perception than most are willing to concede.
Take the attention paid to Scalia for instance: While I do not personally think history will be kind to him, I do believe he has become something of a red herring for everything that is wrong in our system. Here are a few facts to consider: As bad as Scalia is on this issue, Thomas is actually worse. The interest in Scalia, however, seems understandable enough given his caustic remarks, his mocking tone in Bush v Gore, or the way he blatantly puts his policy preferences over precedent (e.g., his treatment of Wickard v Filburn in Gonzales v Raich). Here is another fact: If you go all the way back to the Civil War, Democratic and Republican appointed justices have on average voted for non-regular trials a little over half of the time. In other words, neither have a really great track record on this. And while Scalia and his ilk may be bad jurists, as I have said, they are not the root of the problem. After all, there are plenty of other good ones who have also made exceedingly bad decision. And the next time around, they will make more bad decisions because they are more afraid of the public thinking they are hindering the “war effort” than they are of getting some static for a bad opinion.
posted by randall 
