Error Theory

To establish the proper baseline, start with Hamidi v. Rumsfeld, where Justice Scalia takes the defensible position that if the government wants to hold citizens suspected of terrorism without granting them access to the courts (habeas corpus), it must first suspend habeas corpus (as the constitution allows for in times of war—Article I, section 9, PP 2). I don’t think Scalia is quite right here. In particular, his position conflicts with the Court’s WWII precedent that, in time of war, citizens caught working for the enemy can be treated the same as foreign enemies. Still, the two positions can easily be squared.

Nothing in Article I section 9 requires that a suspension of habeas corpus must be formally declared as a suspension of habeas corpus. Scalia’s objection can be met by arguing that, as soon as an order is given to hold a civilian without due process, habeas corpus HAS been suspended and the only question is whether the conditions under which suspensions are allowed have been met. If Scalia thinks it is important for suspension of habeas corpus to be officially declared, fine, the formality is easily supplied, but it seems incorrect to put the formality over the substance, especially when the formality is not specified in the Constitution.

Justice Stevens’ dissent in Rumsfeld v. Padilla (joined by Breyer, Ginsberg and Souter) does not explicitly mention the power to suspend habeas corpus, but his sweeping language makes clear that he sees detention for purposes of questioning as constitutionally barred WITHOUT QUALIFICATION, regardless of the fact that the Constitution explicitly provides for the use of extreme measures in time of war. Listen to this posturing. You’d think he was giving a graduation speech at Brown University instead of addressing the imperatives of a nation at war with mass murderers (like the one in front of him, accused of plotting to irradiate a city):

Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Set aside that the hallmark of Star Chamber was the investigating and preventing of BLASPHEMY (which is why it was an outrage), not mass murder. (Right, 16th Century England would have really gotten up in arms about using harsh techniques on mass murderers. Their penalty for almost everything was death.) The serious problem with Justice Stevens' rant is the lack of qualification, which suggests that he would rule that even an explicit suspension of habeas corpus must be held unconstitutional, at least when it comes to the questioning of detainees. Already this position is asserted implicitly, given that, as noted, the Constitution does not say that suspension of habeas corpus must be explicitly declared. Arguably, we are right now under a constitutionally authorized suspension of habeas corpus, and Stevens is rejecting it because enemy combatants are being questioned.

Unfortunately, supreme court precedent on suspension of habeas corpus opens the door to this kind of travesty. Ex Parte Milligan is a perfect example of the adage that hard cases make for bad law. Milligan had been prosecuted under President Lincoln’s suspension of habeas corpus, but he didn’t come up for execution until after the Civil War was over. Lincoln was going to pardon Milligan, but got assassinated first. Not wanting to execute someone for taking sides in a war that was over, the Supremes needed an excuse to declare continued prosecution under Lincoln’s suspension of habeas corpus unconstitutional. The excuse they came up with was far too broad. It is not founded in the Constitution, and it makes no sense.

The Court’s ruling in Milligan is that habeus corpus can only be suspended when civilian courts are not in operation! That is, habeus corpus can only be suspended for some when it is suspended for all! That is insane, and it has been sitting there like a time bomb for a hundred and forty years. The bogus moral posturing and extra-constitutional language of Stevens et al. suggests that, if President Bush or some successor is driven by the exigencies of the terror war to formally suspend habeas corpus, we can expect the left wing of the Court to use every means at its disposal to attack this power, which will mean using the Milligan time bomb to excise Article I section 9 from the Constitution.

Milligan is not all bad. The Court in Milligan was probably correct to rule that the writ of habeas corpus itself is not eliminated by suspension, but rather that it loses its force when the conditions that allow habeas corpus to be suspended obtain. This allows the Court to review to make sure that these conditions do obtain. Once review is opened up, it can go in different directions. For instance, it could be used to introduce some much needed treating of different cases differently. So long as treating different cases differently does not devolve into regular judicial oversight, but only acts at the most general level to separate cases where national security requirements are plausibly alleged vs. cases where they are not (a la Korematsu), this would seem to be a legitimate balancing between the power to suspend habeas corpus and the constitutionally protected rights that such suspension compromises. Surely these rights can take precedence when the conditions that call for executive discretion do not apply, and it should be possible to go some way in this direction without infringing that proper discretion.

Milligan’s application of oversight actually goes the other direction, treating all cases the same, but the scheme of oversight that Milligan advances really is an open door. Justice Stevens’ opinion in Padilla reveals how he and his comrades want to go through it. They want to bring in an exclusion on questioning that is absolutely not indicated in Article I section 9:

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information.

Following Milligan, the Court has some leeway to decide WHEN it has no oversight, but it has no leeway to decide HOW it has no oversight. Suspension of habeas corpus means no oversight and no oversight means no oversight. Partial oversight, allowing detention but not questioning, is not on any plausible constitutional menu. Does the Constitution specify that detention is a legitimate object for suspension of habeas corpus while questioning is not? Bullshit.

Why in the world is Justice Stevens so eager to block questioning that he calls in a childishly incompetent allusion to Star Chamber to trump the Constitution? How is information gathering less important in times of war than incapacitation? Stevens is in effect trying to Mirandize enemy combatants. Under Miranda, it is unlawful to question people who don’t want to be questioned. This would seem to be the gist of Steven's reference to "unlawful procedures." Not only does the Court’s left wing want to extend the protections of civilian law to those who wage war against us, it wants to make sure that they receive all the excesses of civilian protection that the Court has concocted over the years. Even when prudence requires that enemy combatants be held, they still shouldn’t be questioned!

Leftist motivations are always a puzzle, but one possibility is that Justice Stevens’ anti-questioning tear is an example of post-Abu-Ghraib psychosis. Maybe he is whacked out about questioning because he is under the delusion that the guy in the pictures with wires on his fingers was actually being given shock treatment. Stevens sounds like that New York judge who compared Bush to Hitler. His ridiculous reference to Star Chamber has the same demented ring as the “Got Democracy?” posters that have gone up all over San Francisco. The descent of the Democrats into unhinged leftism seems to have spiraled all the way up to the Supreme Court, where it now has half the Court sucked into its toilet bowl swirl.

This is serious stuff. Left Court is out to cripple our ability to defend ourselves. “Tut tut. Tie that arm. Marquis of Queensbury!” Wrong. That is what suspension of habeas corpus means. The gloves are off and the ref is out cold. Not your call Stevens. Not now. Not ever. You’ll be dead long before we half-way finish dealing with terrorist scum.