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Thank heavens for you, too, Marty. Otherwise I would've completely overlooked the powerful argument that it's really Bulgaria pulling the strings in Iraq.
As for the rest of the merits, there's nothing you said, Marty, that I have much cause to fault. Hirota is readily distinguishable, particularly (for better and worse) on citizenship grounds. And the MNF-I arguments seem particularly likely to ring hollow on a court that has, so far, been more persuaded by arguments based in reality. As Justice Kennedy put it in Rasul: "Guantanamo Bay is in every practical respect a United States territory." Practically speaking, I'd like to think it hard to see how the administration wins this one.
But that brings us to Eric's argument, which I take to amount to this: Even if the federal habeas courts find jurisdiction to hear the cases, and Munaf and Omar ultimately win release from U.S. custody, they're still in Iraq. What's the point of this whole habeas exercise challenging the legality of their detention by the Americans if the Iraqis can just arrest them right away anyway? Several points. First, with respect to its implications for the legal question presented (Do U.S. courts have the power to hear the case?), so what? You're raising concerns mostly about the meaningfulness of a final remedy. Even if you're right that there's nothing good that can come for Munaf and Omar (and I'll argue in a sec it's at a minimum not at all clear), we've all seen the Supreme Court (in an exercise, one might suggest, of judicial restraint) regularly distinguish between answering questions about whether it has the power to decide, well before it gets to the question what it has the power to decide. So for the time being, I'd say that issue just isn't here.
Second, a key issue that is here is the preliminary injunction barring petitioners' transfer to Iraqi custody. That is, the question of where Munaf and Omar get to stay while the federal courts think about whether their several-year-long imprisonment by the United States without meaningful access to counsel, after (in Omar's case) severe beatings, etc., violates anything in the U.S. Constitution or laws. There, the outcome makes a potentially huge difference, as much of the briefing in the case discusses. Petitioners have vigorous claims that sending them to the Iraqis pending trial would violate U.S. treaty obligations not to transfer anyone anywhere where they have (here, not just substantial grounds, but every expectation) of being tortured. So even if it turns out the U.S. has done nothing wrong, and Munaf and Omar ultimately get turned over to the Iraqis, I'd buy a client's preference to put that off while the courts mull everything over.
Finally, and here I'd welcome some insight as it's been a while since I had fed courts, what is the scope of discretion a district court has in awarding a remedy in habeas? Release is surely in the realm. What about release in a country where there's a reasonable expectation petitioner won't be tortured? On its face, doesn't seem out of the question. But I'd be happy to know more.
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Scholars who want to explain things and also suggest reform find themselves in a difficult position. Suppose you have an excellent theory that can predict how justices will vote in Supreme Court cases. The theory's independent variables are all nonlegal factors, such as who appointed the justices, where they obtained their law degree, the region in which they grew up, etc. Next, the Supreme Court decides a case, exactly as predicted by your theory, but in a way that, you are sure, will greatly injure American society. You sit down to write an op-ed decrying this outrageous assault on the rule of law. "Put your pen down," says Jack, in effect. "Your own theory predicted this outcome, and your theory does not include, as an independent variable, op-eds written by outraged professors. Therefore, you are wasting your time (or just showing us that you don't believe your own theory)." See Jack's post here, which was a response to mine here, which was a response to his here, and see Dahlia's skeptical response to his initial argument.
This problem was called the "determinacy paradox" by a pair of economists—Brendan O'Flaherty and Jagdish Bhagwati—who realized that (for example) economists' efforts to persuade governments to lower trade barriers were inconsistent with economists' theories about why governments raise trade barriers. If trade policy reflects the influence of interest groups that care only about the welfare of their members, then it seems pointless to tell the government that free trade advances the public good. It's a powerful critique, and if Jack didn't also make normative arguments both on his blog and in his scholarship, I would be persuaded he believed it.
After all, Jack advises liberals and progressives (not sure which is the right word these days) to stop complaining about bad judicial reasoning and to start engaging in politics. Exercise your right to vote, engage in public criticism, join a social movement. If you succeed, you will eventually put into power presidents and senators who are willing to appoint Supreme Court justices who agree with your views. However, this theory, or at least one reading of this theory, does not escape the determinacy paradox, either. It only appears to do so because no one has a very good theory about how a social movement starts. But on one reading, Jack implicitly assumes an ironclad deterministic theory, one that says that social movements of one or another particular political coloring will come into existence when factors X, Y, and Z are present (say, economic disruption, large-scale immigration, the appearance of a charismatic figure, etc.). If his theory is a good theory, then whether or not you, the reader, engage in politics or join a social movement or do anything at all, future Supreme Court case outcomes have already been determined.
I don't think that the determinacy paradox is quite as troubling as Jack appears to think. Indeed, in another (probably better) reading of his theory, it makes sense to engage in politics, including the political activity of criticizing Supreme Court justices for too enthusiastically striking down statutes that contradict the political preferences of the party to which those justices belong. Let's agree that Supreme Court justices, today and in the future, are heavily influenced by "politics." And let politics include not just the expression of bare political preferences, but also arguments about publically beneficial institutional arrangements. Some people are cynical about institutional arguments, thinking that they are almost always disguised partisan arguments, but it is undeniable that, every once in a while, an institutional innovation benefits both sides of a partisan divide. Civil service reform, which limited destructive patronage battles between parties, might be an example. A more pertinent example would be the development of an independent judiciary. The argument today is about whether this judiciary performs adequately, or should be reformed. A strong case has been made that American Supreme Court justices have gone too far in evaluating and striking down laws on the basis of their constitutionality. In doing so, they contribute to a pattern of behavior that hurts Democrats when Republicans control the court, Republicans when Democrats control the court, and, the argument goes, everyone in the aggregate because the temporary gains for each side are less than the temporary losses and the permanent damage to democracy and the rule of law. The type of institutional deal that would be necessary to escape this cycle is no harder to imagine than other institutional deals that serve bipartisan interests. Existing Supreme Court justices might be led to see that in the long term, their personal, ideological, or partisan goals would be advanced through judicial restraint (because they benefit when the opposite party controls the court). Even if they don't, future Supreme Court justice appointers might. And the political branches, if they ever get tired of how the court behaves, might press for institutional reforms from the outside. The fact that most advanced liberal democracies have much less of this behavior makes this scenario quite imaginable.
This judicial restraint view might be wrong, but if so, it is wrong for empirical reasons that one would like to hear from Jack or anyone else. The response that Jack needs to give is not a discussion (however interesting) of how, historically, various political agents struggled for control and some of them adopted this particular view, in some cases for opportunistic reasons. You can't defeat a normative argument with a description of how others have made the same normative argument in an opportunistic fashion. Jack's determinacy-paradox argument, if taken literally, contradicts his own argument that people should engage in politics if they seek to improve the world. If taken in a less literal sense as a warning that it can be hard to persuade Supreme Court justices to change their behavior and that it's even harder to persuade others that particular institutional reforms will benefit people across the political spectrum, no one disagrees with him.
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Continue reading at Balkinization ...
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No answers to questions by Eric and Deborah, but more questions about Munaf: There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.
Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether
United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.
Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a "military tribunal" established by U.S. Gen. Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)
But here's what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,' " as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)
The claim suggests a break in the U.S. chain of command—a cession of U.S. sovereignty—that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: "[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. ... The existing framework governing these matters is sufficient for these purposes." Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:
But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.
Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.
(Cross-posted at IntLawGrrls blog.)