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Over at XX Factor they’re having an interesting discussion about whether Democrats who now say they’re going to vote for McCain are racists. As someone who wrote a whole book about why it’s a bad idea to make this particular accusation lightly, I have to agree with Melinda Henneberger that “supporting Hillary, or now McCain, over Obama does not a racist make.” But there’s a big distinction to be made between liberals who supported Clinton over Obama and those who support McCain over Obama. For a liberal to support Clinton over Obama suggests nothing about his or her attitudes on race because Clinton’s policy positions are liberal. Of course, it might be that support for Clinton was due to racism, just as it might be that support for Obama was due to sexism, but there is really no reason to assume this—it’s not even evidence of racism, much less proof. But when a liberal supports McCain over Obama, that does call for some explanation. Why reject the candidate whose policy positions are in line with your own? This is still is far from proof of racism, but it makes you go hmmn, as Arsenio Hall would put it.
Of course there are a lot of explanations that don’t involve racism. Maybe some Democrats for McCain really buy into the experience line; maybe some voted for Clinton mainly due to gender solidarity and actually prefer many of McCain’s policy positions. Personally, I suspect most Democrats for McCain are driven not by racism but a much more widespread, simpler, and more primal motivation: spite.
I suspect a lot of the reason Obama supporters want to tar every Democrat gone over to McCain as a racist is that they suspect that some unsavory motivation underlies this strange shift in political alliances and jump to the most uncharitable conclusion: racism. Juries are apt to do this in discrimination cases, too: If the employer is acting out of favoritism, vindictiveness, or spite, they figure he’s probably a racist, too. But in fact the likelihood of another unsavory motivation, sufficient in itself to explain the decision, cuts against the inference of racism: If Clintonites could be motivated to support McCain by spite alone, then we have less of a reason to suspect them of racism.
Oh, by the way, before the hate mail from Clinton supporters pours in: I have no doubt that many Obama supporters would have succumbed to a spiteful solidarity with McCain had Obama lost to Clinton. (Oh, oh: Is that just going to get me more hate mail?) Crushing disappointment and a resultant spiteful backlash has been a real risk in this primary of potential “historic firsts”: Someone had to come in second, and some profound symbolic triumph over bigotry and oppression had to be delayed. That’s hard to take, and we can expect the McCain campaign to try to capitalize on the resentment of the losing faction. I think Obama could probably win the election without the racist vote, but he may have a hard time winning without the spiteful vote. Let's hope those liberals for McCain decide they like their faces enough not separate them from their noses.
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The problem with being a judge who loves to shock is that you're a flashy barracuda in a school of plain tuna, and you risk careening off into the high seas that are the province of public officials who are just too out there for their own good. Such is my thought after reading that Judge Alex Kozinksi posted porn on a web site he thought was private but wasn't. The material included "a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal," we learn from the los Angeles Times. We can't judge for ourselves anymore, because the site has been wiped clean, but if Judge Kozinski says that he found the porn funny, I bet he did—and it was probably offensive, too. Herein lies the Kozinski challenge. He is a transgessor, a flouter of boundaries, a man of many appetites. When he wrote a weeklong diary for Slate in 1996, he told us all about going to a lingerie and pajama party. ("The Location: Gatsby's Rendezvous by the Sea, 'the house that all of Malibu deems the scandalous haven of sleepless nights.' ") When I profiled him in 2004, the art for the piece depicted him as a circus master—and he liked it enough to ask for a copy. Plenty of other examples could be inserted here, and Phil has plenty of company in appreciating Judge K's quirks. Lots of reporters and court watchers have urged him onward with our appreciation. And now that we know that among the many things he appreciates are women painted to look like cows, how can we go all schoolmarmish? I know, I know, judges are supposed to be beyond reproach, and this is the opposite of that. And yes, being outed for semi-public porn-sharing while trying an obscenity case is pretty rich. It's the sort of plot twist Judge Kozinski would write into a screen play. Maybe that's the answer: Toss the bench and move to Hollywood.
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When I read the news today about Judge Alex Kozinski's posting of inappropriate material on the Internet, it jogged my memory about Judge K's long history of advocacy on Internet use and privacy.
Back in 2001, Kozinski led an effort by 9th Circuit judges to circumvent, disable, and overturn a computer-monitoring system put in place by the Administrative Office of the U.S. Courts. Kozinski wrote several long memoranda to his colleagues on the bench and the Administrative Office, excoriating the monitoring system and the bureaucratic leaders who imposed it. In one New York Times article about Kozinski, the reporter (perhaps with Kozinski's urging) compared the monitoring to what he experienced as a child behind the Iron Curtain. And in an op-ed for the Wall Street Journal, Kozinski himself wrote that "according to a policy that is up for a vote by the U.S. Judicial Conference, we may soon start treating the 30,000 employees of the judiciary pretty much the way we treat prison inmates." Clearly incensed, he later called the monitoring scheme a "pure, bureaucratic power grab."
Don't get me wrong—I really like Judge Kozinski and his quirks, and have admired him since I first interviewed him in 1996. But I think he erred in this case. And in light of today's news, he probably leaned too far forward in his fight against the Internet-monitoring scheme in 2001.
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In
seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?
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In an interesting new article in the Green Bag, Stephen Vladeck offers a creative solution to what he (and Justice Scalia, in INS v. St. Cyr) refer to as the "one-way ratchet" of habeas corpus.
To summarize Vladeck's point in the briefest of terms: He observes that the fight over congressional tightening of statutory habeas relief is complicated by federal prisoners's inability to pursue the common law writ of habeas corpus in federal district court or state courts:
Taking Bollman at face value, the common-law writ of habeas corpus is a remedy that the Article III courts are constitutionally powerless to provide. Taking Tarble at face value, such a remedy is also one that state courts are constitutionally powerless to provide against federal officers.
Vladeck's solution: allow the local D.C. courts to entertain habeas petitions. They aren't Article III courts subject to Bollman, yet they aren't state courts subject to Tarble. To do so, he notes, would require the rescission of D.C. Code Section 16-1901(b), which prohibits the filing of petitions for writs of habeas corpus against federal officers in the local D.C. courts.
But is Section 16-1901(b) really the only roadblock? Unless I'm mistaken, Vladeck completely ignores the problem of assigning habes petition jurisdiction to an Article I tribunal. In Palmore v. United States (1973), the Supreme Court explained that the local D.C. courts were Article I courts, not Article III courts. As the court recognized in Northern Pipeline Construction v. Marathon Pipe Line Co. (1982), Congress cannot assign to an Article I court jurisdiction over matters that are "inherently ... judicial."
I am no expert in the nuances of this corner of the law, but my initial reaction is that habeas corpus proceedings are nothing if not "inherently judicial." As the court recognized in Rasul, habeas corpus is “a writ antecedent to statute … throwing its root deep into the genius of our common law.” Indeed, the Constitution's protection of the writ of habeas corpus against improper executive or legislative interference seems to make all the clearer the writ's roots in the courts, and not in legislative or executive tribunals.
Perhaps those more knowledgable on the point can correct me: Have federal habeas petitions ever been the province of executive or legislative tribunals?
Update (6/14/08): Steve Vladeck let me know that the next draft of his paper (not yet published on SSRN) does does with the Article I courts issue.
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Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).
On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?
On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.
More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.
What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.
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Deborah has thrown down a gauntlet to me: "Any court we pick-commissions, courts martial, federal courts, some new system-is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?"
And I am going to cop out: yes and no.
Deborah's question is a fair one-and at least for me, it has no simple answer. Here's a sketch of my complicated answer, which I flesh out more fully in my forthcoming book, Law and the Long War: The Future of Justice in the Age of Terror.
I agree that there is no current institution better prepared than the federal judiciary to try terrorism cases, but this is low praise indeed for the federal judiciary, and it does not imply that the federal judiciary is well-prepared for the job. To say that an institution is better prepared than the military commissions-which have to date convicted exactly one person, and him through a plea bargain-is hardly a commendation. If the question is whether I regard the federal courts as the optimal environment for trying terrorist cases, the answer is no. This is why I believe that we need a hybrid institution, mixing the prestige of the federal courts with some of the flexibility of military commissions on rules of evidence and handling of classified information. Call it a national security court or call it something else. But it looks exactly like neither of the systems we have today, though it draws on elements of both.
To cite the group of cases the government has actually prosecuted in federal court as evidence that the federal courts are up to the job is to stack the deck in the debate. Nobody doubts that the federal courts are up to the job in some cases, not even the Bush administration. To look only at the universe of cases prosecuted in American courts is to study a preselected sample of cases carefully chosen by prosecutors for their amenability to trial in U.S. federal courts. This is, in other words, an expression with the wrong denominator. The right denominator-much harder to get a handle on-is the universe of cases in which the government would reasonably seek to use the criminal law to neutralize or punish a detainee. The evidence that the federal courts are up to this task is, in my view, decidedly unimpressive-particularly if, as Deborah also advocates, we're going to rely on the criminal law as the sole source of authority to detain people in the war on terrorism.
The failure to establish a viable trial regime for terrorism cases has been one of the current administration's most startling failures. If our answer to that failure, however, is a singular reliance on federal court trials, I make the following prediction: We will see very few trials compared with both what we want as a society and what we could get in another legitimate system. And we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe.