19 Oct Military Commissions Act: The Sky Is (Probably) Not Falling
With the MCA’s enactment, there seems to be a general sense of despair (or elation, depending on where you sit) that we are now in a world in which anything goes. As Jack Balkin writes, whether or not the MCA actually continues to constrain the President from engaging in certain conduct he characterizes as “torture lite” is an academic question, given that the courts have been cut out of the picture. Marty Lederman and John Yoo agree from their somewhat different vantage points.
But just because the statute will (whether through its substantive terms or by constraining judicial review) allow the President to do this stuff doesn’t mean that he will. There are agents of constraint other than the courts. First, there are domestic actors (including editorialists, academics, and, yes, perhaps even bloggers) who are material part of the picture. Keeping up the drumbeat counts for something. (An interesting contrast here is to WWII and the complete absence of any opposition to the Quirin military commissions, as Goldmsith and Sunstein highlight in this piece.) In academic terms, the backstop – albeit a crude one – is constitution-making outside of the courts. The Alien and Sedition Acts were never declared unconstitutional in court, but most today would so consider them.
Perhaps more important, the international community is hardly going to turn down the volume. Again, that won’t stop the Bush Administration from availing itself to some measure of its new authority under the MCA. But in many contexts, it does mean that adopting policies deemed inconsistent with international law by the international community will come at a cost, in some cases enough of a cost to tip the balance. That’s a form of enforcement. Other countries are now in a position to impose some discipline on the US, framed in international law terms.
I don’t want to exaggerate the robustness of these nonjudicial constraints. But I think they are real, and (notwithstanding the Administration’s political swashbuckling) I don’t think we’ll see a return to the legally heedless approaches of the immediate post-9/11 era, even with the blank check of the MCA in hand.
>>”Perhaps more important, the international community is hardly going to turn down the volume. Again, that won’t stop the Bush Administration from availing itself to some measure of its new authority under the MCA.”< <
Nor should any international community squawking prevent the President from exercising its authority under the MCA. None of these countries owe a duty to safeguard U.S. citizens; the President does. And as we’ve seen from the actions of various European countries, who call loudly for the shutdown of Guantanamo but refuse U.S. efforts to repatriot detainees to their countries, EU members are hardly to be held up as some ‘moral authority’ for the U.S.
To clarify: many of these cases in which European states have refused to take prisoners from Guantanamo Bay had nothing to do with ‘repatriating’ them, for the simple reason that these people were not citizens of the relevant states.
In one (possibly: other) case, the UK has rejected a US ‘offer’ to release Gitmo inmates to it on the simple grounds that the offer came with the most incredible strings attached: the US would only send these people to the UK on the condition that UK authorities keep them under 24-hour surveillance. The British police were unwilling to do that, simply because there wasn’t nearly enough evidence to justify such measures under British (and European human rights) law.
I wonder where a charge of immoral behaviour lies here. No, come to think of it, I don’t.