Some Additional Thoughts

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.