Extended Phenotype

Sometime this month, the Supreme Court is expected to issue a decision in the cases of Jose Padilla and Yaser Hamdi. As I’ve mentioned before, I think it’ll be easier for the Court to duck fundamental issues in Hamdi’s case, since he was captured in Afghanistan allegedly fighting for the Taliban. But Padilla v. Rumsfeld ought to force the court to address the merits of the case. If the decision turns strictly on jurisdiction and venue, then we’ll know how thoroughly the Court has decided to avoid issues of executive power presented by the current White House.

In previous posts, I’ve commented on the precedents which should stop abuses of executive power such as these cases represent. There’s a deeper constitutional and moral issue, however: adherence to the rule of law. I don’t expect the Supreme Court to discuss the rule of law directly in their decision, but make no mistake: if they rule on the merits in Padilla v. Rumsfeld, the Court will be taking a stand on how the rule of law applies to executive power.

In general terms, the “rule of law” refers to limited government, a sitution in which the government and its constituent officials are bound by administrative, constitutional, and procedural laws in the same way that citizens are obligated to follow civic and criminal laws. In this sense, a major purpose of the written Constitution is to establish the rule of law within the United States, creating a limited form of government and outlining the powers and responsibilities allocated to each branch.

The rule of law is designed to prevent arbitrary exercises of authority, to prevent government officials deciding substantive outcomes rather than simply setting ground rules for classes of situations. In our system, the latter is considered legitimate lawmaking (as long as the ground rules in question don’t run afoul of the Constitution). General ground rules (laws) are legitimate because they refer to classes of behavior or events, not specific individuals, and thus do not discriminate by providing different outcomes depending upon who you are. (1)

Arbitrary exercises of authority are exactly the opposite — different individuals may achieve different outcomes depending upon the specific decisions of government officials. One sees arbitrary authority throughout the world — and we know all too well how arbitrary authority is used and where it leads. Thus, the Founding Fathers wrote a Constitution which limits the exercise of authority such that officials must work within a strict framework of general rules. Bills of attainder (laws naming specific individuals), for example, are prohibited; ex post facto laws are also prohibited, since the power to make past behavior illegal is a form of arbitrary power.

How does this fit into the enemy combatant cases?

First, let’s just dispense with our feelings concerning Jose Padilla himself. It seems pretty likely given the limited evidence that Padilla isn’t a sweet, innocent guy. He certainly may have been plotting with al-Qaeda leaders, taken training, and been plotting a terrorist attack on U.S. soil.

But that’s not the point of Padilla v. Rumsfeld.

The point of Padilla’s case in front of the Supreme Court is whether his guilt or innocence can be presumed without a trial by the executive branch. The case centers on whether executive power can be used to create a category of individuals who are not subject to normal due process and criminal procedure. The Administration claims the power to detain “enemy combatants” distinct from “prisoners of war” or ordinary “criminals.” The latter two categories are well-defined and carry legal rights and responsibilities; the former category has been newly created and carries no rights nor responsibilities. Furthermore, there are no procedures or criteria defined in statute or regulation which govern in advance how the executive branch can decide whether an individual is an “enemy combatant” as opposed to “prisoner of war” or “criminal.”

Thus, an individual is labeled an “enemy combatant” by the direct, specific assignment of the executive branch. Padilla was named an “enemy combatant” and transferred from civilian to military custody by direct order of the President. No evidence was presented to justify this order, but evidence is beside the point. The lack of a well-defined legal criterion for determining if someone is an “enemy combatant” means that evidence alone cannot be used to refute Padilla’s assignment to “enemy combatant” status. The assignment, and the power used to make the assignment, are arbitrary with respect to the law. And this is specifically what the rule of law is designed to prevent. Regardless of whether the Administration’s intent is noble or not, regardless of Padilla’s guilt or innocence, the rule of law requires pre-defined, rather than arbitrary, exercise of power.

In the past, the Court has ruled that the executive branch cannot exceed its Article II authority in a number of cases, famously including Youngstown Sheet and Tube Co. v. Sawyer — in which President Truman attempted to seize and nationalize steel mills during the Korean War. Counsel for Hamdi base part of their argument on Youngstown, which is rejected as irrelevant by the government because dealing with enemy combatants in a war context is clearly part of the Commander-in-Chief powers granted by Article II. Thus, the Administration claims the right to detain citizens as enemy combatants when necessary.

Where this argument fails, however, is that Article II does not grant lawmaking powers to the executive branch. In our governmental system, categories of individuals and criminal actions must be pre-defined in laws before they can be implemented by executive power. Thus, while the Administration has the right to deal with enemy combatants via the Commander-in-Chief power, it does not have the right to establish rules or laws by which individuals (outside the actual context of the battlefield) can be labeled “enemy combatants.” This is the reason why Hamdi’s case is potentially difficult (because he was apprehended in a war zone), and Padilla’s case much easier as a platform for ruling on the arbitrary use of executive power (because the Administration is claiming to be able to use a war power in a domestic context).

It’s hard not to conclude that what we’re now seeing from the Bush Administration is the arbitrary exercise of power on a large scale, and disregard for the rule of law. The powers claimed by the White House to deny due process rights to any citizen labeled an “enemy combatant” are a loophole through which the government can exercise unlimited powers. It is, in fact, the power to exercise dictatorial control over citizens.

From our comfortable point in history, fifty years after the defeat of fascist Germany and Italy, and long after the totalitarian state of Stalinist Russia has crumbled under the weight of its own inefficiency, it’s difficult to take statements like the last paragraph seriously. It’s easy to say that such talk is melodramatic, that nothing like this could happen in America. It’s hard to believe that the Padilla case really could have an effect over whether America retains the rule of law or heads down the path to dictatorship and the police state.

But it’s a possibility we need to take seriously, because it’s happened before. Nobody “chooses” to live powerless under the thumb of a dictatorial power — it simply happens, usually as the result of seemingly sensible choices which stack up to yield arbitrary powers for those in positions of control.

Please note that I’m not saying this is what is happening in America today, and I’m not accusing the Administration of engineering unlimited power for themselves. People doing what they believe is right, however, may not foresee all the consequences. Regardless of good intentions, the result can be the same — and has been, throughout history. America is not automatically immune to the erosion of liberty and freedom, simply because we’re the world’s most powerful and oldest “democracy.”

Do we need a way to deal with situations like those presented by Hamdi and Padilla? Absolutely. Is arbitrary authority the only way we can deal with such cases? Hardly.

Part of the government’s argument in the Padilla case is that a criminal trial is impossible, because of the nature of the evidence. Therefore, Padilla is best handled by labeling him an “enemy combatant” and holding him without due process. Let’s examine that argument in light of what we’ve discussed. In other words, because the due process we have isn’t feasible, Padilla can’t receive due process at all. The government’s argument boils down to saying that existing evidentiary rules for criminal trials are more important than principles of limited government — because in case of a conflict between the two, evidentiary rules win and limited government goes by the wayside.

And I don’t know about you, but that’s ridiculous. If innovation is required in criminal law and trial procedure, then let’s get busy. If innovation is required in clearly defining “emergency procedures,” along the lines articulated by Bruce Ackerman (2), then let’s get busy. I find it hard to believe that this country, home of countless innovations, can’t solve a problem like this.

I find it hard to believe that the country fathered by the likes of James Madison, Alexander Hamilton, and George Washington can’t innovate its way through new constitutional challenges. However difficult it may be to steer a path between the various difficulties that we face, it’s nothing compared to the difficulty in regaining our liberty once lost to an arbitrarily powerful government, especially one clothed in the rhetoric of democracy and freedom.

Notes:

(1) The generic nature of laws isn’t the only thing that provides legitimacy, of course. A theory of justice is needed to determine whether laws are “fair” or “just.” (see Rawls, Theory of Justice, or Randy Barnett, The Structure of Liberty).

(2) Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal, March 2004. Highbeam Research URL

Today’s article by Christopher Hitchens on Slate is well worth reading. Despite my ongoing attempts to articulate where I disagree with Hitchens (on Iraq), he’s right on the money discussing what will happen when further disclosures are made from Abu Ghraib. Especially since we know that the material we haven’t seen yet is even more disturbing than the pictures and video already in circulation.

The DOJ’s memo (PDF) on “standards of conduct for interrogation” only underscores Hitchens’s point. The memo is designed to construe terms such as “serious pain” in such a way as to leave considerable latitude for physically coercive interrogation. In essence, the DOJ wrote that interrogations involving infliction of physical pain aren’t “torture” unless that pain is “equivalent” to “organ failure, impairment of bodily function, or even death.” Psychological suffering, in order to count as “torture,” must produce “significant psychological harm of significant duration.”

The DOJ goes on to state that “mental harm” must result from a constrained list of sources, mostly involving the threat of imminent death or “torture”-level physical pain, or the use of psychoactive drugs. The memo does not mention, and thus would seem to exclude from the DOJ’s notion of torture, the use of sexual humiliation on Muslims or others for whom such treatment would be culturally taboo. How very convenient that this is not considered mental “torture.”

However, the most reprehensible thing about the DOJ memo is the requirement of “intent,” which Hitchens discusses in his article. The notion that “it’s not torture if I didn’t intend to do it” is simply ridiculous, and attempting to defend this is morally outrageous. The effects of torture on its victims, amply documented by Amnesty International and others, has nothing to do with intentions. The actions create the effects, and the actions are well-documented. Actions, not intentions, form our fundamental notions of responsibility. And regardless of legal wrangling over the definition of “mental harm” or “severe pain,” our government is plainly responsible for past and current torture at Abu Ghraib and other facilities world-wide.

The DOJ’s memo is well worth reading (or at least skimming), because it underscores a point that Orwell made long ago — the face of evil, when we see it, won’t always have cloven hooves or a swastika-laden brown shirt. Sometimes the face of evil is best visible in the dry, dusty prose of a lawyer’s brief, or a court’s decision.

After another puzzling literary encounter with Christopher Hitchens, and his detractors (of which more in a future post), I started thinking about how I’d label my own political beliefs. I tend to vote Democrat, but I have a feeling that I’d be labeled a “centrist” or even a “conservative” depending on what issue I was discussing.

And I think I know why.

Much of the time I look at liberal/progressive/Democratic platforms, there’s a mixture not only of goals, but of policy proposals. This is fine, but thinking rationally, one would hope that the goals are more important than the means. Sadly, this doesn’t turn out to be true. The reason I tend to identify as a liberal Democrat is that I agree with the goals. I often disagree with Republican goals, especially since that party has been “captured” by groups with a socially regressive agenda.

What I hate about my own party and politicians, however, is that the means seem to be as important — sometimes more — than the goals. There’s an orthodoxy about the acceptable means for providing universal healthcare, or handling the education problem. Single-payer is a good means for achieving universal care, regulated vouchers for private care aren’t. Education reform through the existing public schools and union regulations is a good means for fixing schools, whereas a program of variable teacher pay through merit, vouchers, and charter schools aren’t.

My party — the party of rights advocacy, equality, education, and internationalist foreign policy — is also a party wearing a bureaucratic straightjacket. We shy away from virtually any market-oriented solution if there’s a centralized bureaucratic alternative.

Thus, I’m a centrist because I believe in the goals but not the means of my party. I’m a businessman and entrepreneur (in addition to being a geek, of course). I’m not afraid of market solutions, if they’re regulated properly. I am afraid of bureaucratic solutions, which breed inefficiency and waste. Governments should do things that can’t be done by the market, and provide the structure that markets need in order not to crush the unlucky and disadvantaged.

Does this make me a libertarian? Hardly.

Hayek has a point about the evils of collectivism. But again, we confuse the goals with the means. We can have progressive social goals, without collectivist means. And we can have market forces that work to provide individual liberty and social welfare, without the evils of laissez-faire. We just have to get beyond the tired categories and norms.

We know that regulation can work to structure and stabilize markets, without removing individual incentives and competition. And there’s plenty of evidence that unregulated capitalism is incredibly bad for most, if not all, participants. California’s energy market in 2001; the stock market prior to 1933; much of the economy in general during the Gilded Age.

Proposals like Matthew Miller’s “Two Percent Solution” should be adopted by liberals as the most direct means of achieving our goals, provided that the means includes enough oversight and regulation. In my view, if we can give Americans universal health care by forging a bargain between government and private health care, we should do so without hesitation. The “road to serfdom,” to use Hayek’s timeless term, is about goals, as much as means. Not all collectivist methods are evil, just as not all market-oriented methods are evil. The goals matter, as do the ways we provide oversight and accountability.

I, for one, welcome carefully thought out market approaches to reaching liberal/progressive goals. And I’m tired of hearing politicians argue the same old methods. After all, one definition of insanity is doing the same thing, over and over, expecting a different result.