Some Additional Thoughts

by Benjamin Wittes

Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that “I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

I was reminded of this quotation in reading Marty’s voluminous catalogue of laws, which he posted in response to my comment that “we do not have a lot of law here.” Allow me to play the textualist to Marty’s strict constructionism. I wasn’t talking about the number of laws or even the scope of their coverage. As Marty notes, I spend a number of pages in my book describing the many laws Congress has passed–and I spend a fair bit of time at the outset of the book as well laying out the state of the law on September 10, 2001. The comment was, rather, a reference to the collective failure of the our statutory and constitutional law to answer the questions we face with the specificity we need. I hope this is clear in context. In case it isn’t, let me hearby clarify: I do not now and have never doubted that Congress has passed many laws that arguably bear on the confrontation with Al Qaeda.

I do, however, doubt very much that these laws either answer our questions or, to the extent that they do answer them, answer them optimally. Consider: At the outset of the war on terror, Americans were debating–to name just a few issues–what rules govern detentions, what rules govern interrogation, and what rules govern trials for those terrorists we mean to put on trial. Today, nearly seven years later, all of these questions remain contested. We continue to argue them as though our current laws answer them adequately. Yet the very fact that we’re still arguing is evidence enough that they don’t. We should stop pretending and have the guts as a society to write laws that would resolve them.

That is the sense in which we don’t have a lot of law here.

In response to Geoffrey’s post, permit me to vamp a minute on his peg and hole metaphor. There are only two ways to push a square peg into a round hole. Depending on the size of the circle and the square in question, you can wedge the square peg in such that it is circumscribed in the circle. The other way, if the square is larger than the circle, is to push hard enough that you create a new square hole by depressing the area around the circle. The first way leaves gaps. The second way does deforms your peg board.

This is not a bad metaphor, in my view, for our current situation. If we want to avoid creating a hybrid regime, we have three choices, we can use law enforcement within its areas of competence and the law of armed conflict in its arena and accept that there are gaps between them–gaps through which really dangerous people will slip. Alternatively, we can pump up law enforcement powers beyond our comfort level or pump up wartime powers beyond our comfort level–thereby deforming our peg boards. For a variety of reasons, I don’t think either of these strategies will work very well. To offer only one example, consider Mohammed Khatani–the supposed 20th hijacker. It seems, owing to the circumstances of his interrogation, that we can’t prosecute him. Should we let him slip through the cracks? Should we change the rules of trial so as to enable his prosecution–thereby deforming criminal justice? Or should we detain him indefinitely under military authorities? Or should we instead, perhaps, contemplate a detention power tailored for the scary guys we can’t prosecute and don’t want to let go? In the long run, the latter option strikes me–as Rumsfeld might say–as the least bad option.

I have little to add to Bobby’s post. I react to the question of whether Congress should guide the courts in considering these cases with a kind of grade-school-civics simplicity: Of course it should. Congress’ job is to make law. We have a giant yawning lack of clear law here (Marty, see above!). If Congress does not feel inclined to step in and answer some of the questions currently on the table, one is entitled to wonder what exactly we have a Congress for.

http://opiniojuris.org/2008/07/29/some-additional-thoughts/

2 Responses

  1. Two quick thought on the Kahtani example:

    1) Why exactly should we be so scared of releasing him?  Guys like this are only really dangerous if you don’t know who they are.  He wasn’t a 9/11 planner; he was a (not very competent) subordinate.  Presumably we have border and overseas surveillance capabilities to prevent him from doing anything too terrible if he were released.

    2) The reason he can’t be prosecuted is because his interrogation really went over the line; otherwise he would have been an easy conviction (and no court is going to overturn these convictions on constitutional technicalities).  Those sort of interrogation techniques presumably won’t be used in the future (they didn’t actually do any good with him).  So future al-Kahtanis can be prosecuted under ordinary criminal law. 

    The rough domestic law analogy here is the clearly guilty murderer who gets off on the Fourth Amendment violation.  It’s not pretty, partly because there’s a chance he won’t have been rehabilitated, and will strike again.  But it’s a risk we live with.

  2. Ben,

    I don’t buy this at all. Marty left a few things off his list, and the alleged lack of clarity is mostly a figment.

    The law is what it is, and I’m unaware of anything in the last 800 or so years of jurisprudence that would suggest there is much of anything in the law which is perfectly clear in every conceivable situation. Like all human institutions, the law is only as perfect as we are.

    In reality, the law is quite clear about certain things. 18 USC 2441 makes it a federal offense to commit any grave breach of Geneva 1949, any violation of Geneva Common Article 3, or any violation of Hague IV 1907 annex arts. 23, 25, 27, or 28. The torture statute isn’t unclear outside the realm of administration’s fraudulent legal briefs, and neither is the federal assault statute. I’d like to know why any of that is any more or less clear than the elements of a murder or manslaughter.

    What about article 6 of the IMT Charter is unclear to you?

    Would you seriously make the claim that the President of the United States could lawfully commit an act which we executed Nazis for committing?

    I doubt you would, but if that’s so, I’d like to hear you to say it clearly in plain English.

    You say this is all about design. I spent 20 years designing business systems, and the first question in any design project is: What’s the problem?

    The design process consists of relating means to ends, so why would you suppose in the case of Mr. Khatani that the solution requires a change to the law when the problem is the incompetence and criminal misconduct of the Bush administration?

    That makes absolutely no sense at all, and your proposed solution is essentially to change the law so you can impose guilt without actually bothering to prove the charge. That is pure prejudice on your part, and indeed, a WAR CRIME in and of itself.

    And I ask again:

    What reason is there to suppose that ANYTHING the Bush administration claims about the law here is valid?

    Their arguments are preposterously laden with the worst sort of sophistry, fallacious reasoning, and fake history. The one thing we know for sure is that come January, we will have a new administration and the legal polices are going to be different. I’m not making any big assumptions, but things will change some even under McCain, and could change a lot under Obama.

    We don’t need new laws here, what need are public officials who OBEY the law instead of subverting it in order to commit war crimes.

    Charly

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