Culmination of Detainee Thoughts I

Several key ideological issues separate my own views from those of Ben Wittes, my employer. The ironic part is that Ben thinks that his own view is pragmatic and essentially non-ideological.

First, Ben harbors a deep-seated fear of judicial power. He senses sinister motives around every dismissal for want of jurisdiction, every constitutional question left unanswered - nearly every ruling on process rather than the merits. At the same time, he scorns any judicial interference on a detailed, policy-making level.

Many would - as Seth Waxman does - contend that this approach is contradictory. Ben wants the courts to do both less and more. Yet there is no necessary contradiction: Ben merely wants the courts to evaluate the adherence to rules, and not to administer those rules themselves. Therefore he gets nervous when courts are less than fully transparent and thus leave open to themselves the possibility of crafting further, and more detailed, rules. In fact, he acknowledges this in his book with a chapter entitled "The Necessity and Impossibility of Judicial Review."

Yet, while I see no contradiction, I still think that Ben's fears may be gratuitous. After all, he trusts the executive with more open-ended authority. The courts have, historically, paused before doing much more than craft very abstract rules, and even these do not depart too much from popular, slowly evolving sentiment. I think the court's ruling in the series of Gitmo cases reflects not an attempt for them to "carve a seat for themselves at the table." I actually think that judges do not hunger for power in the same way that politicians may. They are already influential, and are usually satisfied to simply deliver the final word on cases. While I think the opponents of judicial activism may be right that judges will decide cases based on their preconceived notions about outcomes - thus taking the opportunity that arises to decide an issue as they personally see fit - I'm not so sure that judges are thinking about the bigger picture of power.

But I think Ben may have some valid points. What is it about the structure of the courts that gives Ben pause to delegate authority to them? Since judges are usually appointed not elected, it could be their lack of democratic underpinning. (Yet at the same time Ben opposes many of the political strategies to hamper judicial nominations and appointments.)

He sees the judicial-congressional dialogue as an inefficient one that prevents thoughtful, unified crafting of policies. This can - as in the case of the California Supreme Court ruling on gay marriages - disrupt a historical legislative-popular dialogue and other, more organic processes.
This reason seems persuasive to me.

Yet I believe Ben also thinks that a legal society should be contained and as organic (democratic?) as possible. None of this Platonic guardianship for him. This is an expanded version of the idea that I have articulated above about legislative-popular dialogues. This is also why he dislikes the influence of foreign law in the US. He generally has pretty low regard for international treaties and agreements. (Although his writings suggest a cautious attempt not to trample on too many feet in this controversial arena, and he generally tries to read US law in conformity with international commitments anyway.) This is why he opposes Justice Breyer's advocacy for citing (and perhaps using, though I'm not clear on this point) foreign law precedent in domestic court decisions. It certainly seems coherent to think that, as American law evolves, it should evolve according to the standards of the governed rather than the standards of foreign peoples who are not under its jurisdiction anyway.

However, I am not altogether persuaded by this point. While I admit its coherence, I am just honestly more of a Platonist than Ben, in a narrow sense. I tend to think that, while it is important that a court's decisions favor its people's standards, I am not generally excited about codifying the standards of one group of people - say the majority - in law that forces others to comply. Accordingly, I am willing to cite whatever authority (even if it is abroad) that favors civil liberties over the substantive will of the governed population. (Of course this doesn't extend to the codification of foreign substantive practices.)

Our views diverge even more on the issue of executive power. Especially in the conduct of war, Ben scorns the attempt of the courts to intervene in executive decisions. Certainly the comparative lack of information and expertise of the courts is beyond doubt. Moreover, the threat of internal divisiveness is real: a power struggle between two equal branches during a time of national crisis could be disastrous to efficient and effective action.

More specifically, Ben and I may differ on how severe the national conflict must be before we defer to the executive. While Ben is content to let the executive rule with many freedoms in any time of "war," I'm only ready to start tipping the balance of power when we approach a genuine "national crisis." We may technically be "at war" in the current counterterrorism initiative, but I think many Americans find the label "war" to be an exaggeration insofar as there seems to be no imperative threat to our national integrity (as opposed to mere security). I am torn, because I know that even the greatest, integrity-threatening al Qaeda plot might only be anticipated as a threat to security. But I generally agree with the civil liberties activists, especially with regard to Guantanamo.

Many of us are willing to concede that the Gitmo detainees may pose a nontrivial threat to national security, individually. Yet Ben also regards the hassle to the executive in providing full civilian trials as a threat to national security, and thus worthy of deference to the executive. Even this is a tricky point, since he wants to provide increased procedural safeguards for the detainees. More than anything, I think he wants the rules settled beforehand, so they are predictable for the executive's use.

Thus the contentious issue is about as simple as the way we weigh national interests versus civil liberties. Many of us value civil liberties for all people so much that we are willing to give up a little security for their sake (Benjamin Franklin notwithstanding). When Ben asks the question, "What if the number of dangerous individuals is 120 rather than 5?" I think this evades the tougher question: "What if the number of dangerous individuals is 60?" That number is probably the more realistic one, anyway.

Ultimately, I think Ben is not substantively far from the views of many of us. The problem is that, in order to combat the extreme rhetoric of human rights groups, he often adopts his own extreme rhetoric. Yet even that rhetoric is underpinned by some genuine convictions about the trustworthiness of our government.

Lithwick v. Wittes

Well, it was perhaps more of a conversation than a debate, but it was provocative.

Some important points:

The realization that, in creating a legal system, we do calibrate our laws to the situation. We would not want to have trials in which no one was convicted, and thus we may end up changing our laws in ways to achieve that. Ben points out a useful contrast with the Nuremberg trials and those at Guantanamo: in Nuremberg, any trial was a concession, whereas at Gitmo our baseline is a civilian trial.

Lithwick did not actually have a point of clash with Ben's view (part of this, of course, is because Ben is rather moderate and likes the image of the radical more than the argument of him - unlike many people). However, she staunchly held that, "after waterboarding is in the picture, all bets are off" because you can't salvage anything from the previous legal procedure - essentially, you can't put on trial any of the tortured detainees. I don't quite understand this argument, because she also agrees that we shouldn't have wholly civilian trials state-side.

Ben made a great point that Scalia tends to have as much - or more - empathy with victims as do the liberal justices on the Supreme Court. He simply defines victimhood differently than the rest of us might.

I always admire that Ben is able to catch liberals in their rhetoric, when they have latched onto a side of an issue because of the particulars of the short-term, rather than because it is right in the details, the philosophy, or the long-term. That I truly respect.