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Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines. Let's consider two cases:
1. a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken cover. Or b) an Air Force officer must decide whether to order an air strike against an al-Qaida safe house in a crowded neighborhood in Baghdad.
2. a) A squad of American soldiers must decide whether to detain an Afghan villager who local witnesses say has transferred weapons to al-Qaida fighters. b) Months later, military officials must decide whether to release this person or continue to hold him.
Both sets of decisions are governed by international and domestic law—and I don't dispute the claim that it may well be in the interests of the United States to comply with international law (though I think this claim is more complicated than others do).
Let's now compare case 1b and 2b. As I understand it, currently the military vets bombing targets with military lawyers. Do you agree that this is a sensible practice? If so, why not use military judges rather than military lawyers? Wouldn't judges be more credible? And then why not civilian judges rather than military judges? Wouldn't civilian judges have more credibility still (and, according to Deborah, wouldn't they do a better job because they are so good with facts and law)? Now let me ask this question from the other direction. If you think that civilian judges should review the detention decision in case 2b, why not have civilian judges involved in the bombing decision of 1b (or civilian federal magistrates, if you want, who could issue kill warrants in the same way that they currently issue search warrants)?
Let's return to 1a and 2a. If we think civilian judges should be involved in cases 1b and 2b, or even just 2b, why not have them involved in the two (a) cases? True, we wouldn't expect them to ride on the tanks or set up shop at air bases. But we could easily have them review the cases after the fact. Indeed, a soldier who blows up a mosque for no reason or for a bad reason could be tried by a military judge for violating the laws of war. But if we prefer to have civilian judges review detention decisions, why not have a civilian judge conduct the trial of the soldier who destroys the mosque? After all, we don't trust the military, do we? Isn't this distrust of the military, or at least of the executive that controls it, the entire basis of Boumediene?* Why not require that targeting decisions—of all kinds, even at the rifle level—be reviewed by civilian judges after the fact, allowing the civilian judges to convict soldiers of violations of the law of war or domestic law?
And, as my air-strike example is supposed to illustrate, I think the distinction between operational and post hoc breaks down. If I am a soldier and I know that I can be put in jail for blowing up a mosque, then I will want operational legal advice for ambiguous cases, even if I don't need a warrant. The Army currently supplies operational advice to air commanders but not to tank commanders. Why does this make sense, exactly? Or does it?
Now, one could make the "this is a new kind of war" or "this is not a war at all" argument, and say that the United States can't detain people without civilian-judge level due process, indefinitely, in a nontraditional war with no foreseeable end without destroying its reputation for caring about the rule of law. But if this argument is correct, it applies equally to the targeting decision. It is, after all, even worse to drop bombs on houses and blow up mosques than to detain people indefinitely, and so if civilian judges are necessary to establish credibility for detentions, then they should be necessary to establish credibility for targeting. The arguments that various people have made in favor of Boumediene's result does not offer any principled basis for giving military judges or lawyers any role at all, in any type of "military" decision in our current nontraditional quasi-war, except to the extent where logistics require an on-site, in the midst-of-hostilities legal determination, and even then subsequent civilian judicial oversight should remain available after the fact.
Perhaps your view is that civilian judges can handle military detentions because they handle civilian detentions all the time. But civilian judges also handle civilian killings all the time (for example, police killings). The relevant consideration is not the act itself but the reasons for it: Can civilian judges handle military judgments as to the necessity of detaining one person and killing another? Does their experience with law enforcement prepare them to evaluate the political and national security reasons for detaining one person and killing another?
*Correction, June 25, 2008: This post originally misspelled Boumediene. Apologies to those who thought that the post concerned the former president of Algeria.
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Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions' own Judge Nancy Gertner) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.
Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.
But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.
But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.
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continue reading at Balkinization ...
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Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.
This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.
If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution.
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Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying.
But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts "defer" to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.
The far more disturbing part of Eric's post, though, is this: "[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance." This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law. If that's a fair account of the point, Eric, we'll just have to agree to disagree.