June 30, 2004

Suspension and Disbelief

by Nick Morgan

I don’t ever recall so many prominent bloggers all at once questioning Professor Volokh’s sense and integrity after Volokh worried that, under Rasul, a hypothetical 50,000 habeas petitions at once could burden our future war efforts. Kieran Healy now seems to think that Volokh’s justification for eschewing torture issues was a crock. DeLong thinks—well, he just channels mockery. Atrios thinks the good professor has judicial appointment in mind.

Juan Non-Volokh, however, takes the hypothetical seriously (as it should be taken). In disputing Volokh, he quotes the text of the Suspension Clause . . .

    The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

. . . and then tortures it:

    Article I, section 8 of the Constitution provides for the creation of "Armies" and a "Navy," but no one seriously contends that this makes the Air Force illegal. The textual provisions clearly provide for the provision of the armed forces, and this settles the matter. Could not one analogously argue that the Suspension Clause authorizes suspension in times of dire national emergency?

Juan also notes that Congress—not the judiciary—might have final authority to determine whether Habeas Corpus may be suspended.

Certainly other branches of the armed forces—especially those technologically nonexistent in 1789—are but the smallest departure from the constitutional text. “Dire national emergency,” however, might include all sorts of things, like extreme recession, widespread disease, or the resurrection of Disco. So I think Juan’s textual analogy fails.

I offer a half-serious alternative: in moments of dire national emergency, perhaps another sort of “stretching the text” would be permissible. That is, supposing an onslaught of habeas petitions were truly a threatening burden, Congress need only argue that the mass filing of petitions by foreigners in U.S. courts is an “invasion.” Hmm…. Operation of the writ becomes reason to suspend it. Sounds more like a Kurt Vonnegut plot than a plausible argument, but they say necessity is the mother of invention.

June 30, 2004 11:33 PM | TrackBack

Eugene, who is usually quite sensible and level-headed, seems to run off the rails when it comes to war-related legal reasoning.

But the answer in this case seems obvious to me: if 50,000 detainees insist on filing habeas petitions, then refer them all to a special master or a panel of special masters and let them work out a procedure (with all appropriate safeguards, for both the detainee and the military) to make case-by-case determinations.

Posted by: Simon at July 1, 2004 07:27 AM

I would seriously encourage all to check out Bruce Ackerman's recent article relating to "The Emergency Constitution." It provides quite interesting reading.

Posted by: Chris at July 1, 2004 10:09 AM

Can you provide the site for Ackerman's article?

Posted by: Shag from Brookline at July 1, 2004 10:20 AM
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