Cottleston Pie

I was disappointed by Eugene Volokh's WWII analog to suggest that the Supreme Court should deny that the Guantanamo detainees have any right to petition our Judicial branch for habeas corpus: "Litigation as a military tactic".

A couple points come immediately to mind:

1. http://nytimes.com/aponline/national/AP-Scotus-Detainees.html ( 2004-04-20): "The Bush administration calls the men ``enemy combatants,'' similar to traditional prisoners of war but outside the guarantees of the Geneva Convention."

   If this "war on terrorism" is to be comparable according to Eugene's example wherein we have detained tens or hundreds of thousands of Nazis and Japanese, then shouldn't the detainees should be treated as POWs under the dictates of the Convention?

2. Eugene's argument is that the Supreme Court should rule on this juristictional case with a view of the hypothetical situation where there are far more detainees than our justice system can handle. Several orders of magnitude more than the actual case in question. He is suggesting that if the privilige is given at all, then an enemy may stage a "denial-of-service" attack. I think the argument could be paraphrased, "it would be too much work to do realistically, so we must avoid the work completely, independent of the issue of justice." If we processed however many detainees there were a some slow non-stop rate, wouldn't that be better than throwing up our hands and pretending to have no responsibility where we feel we should but we cannot muster all the resources to take care of the problem as quickly as we might wish? This would somewhat akin to a "bandwidth-throttling" defense for this type of "denial-of-service" attack.

   Given the reports that some non-trivial number of detainees were delivered by bounty hunters, not captured in a conflict situation with our own troops, we can have a reasonable expectation that there might be some innocents. If we processed just 30 a year randomly, then in this case, an innocent would have a 50% chance of being released within ten years. That's a very long time, but a lot shorter than life in prison. It also gives hope that may prevent the madness of despair that can come upon someone held wrongly and without hope for release or even review for an indefinite period of time in solitary confinement.

On the entire question, I think that there are numerous reasons why the jurisdictional question should be decided in favor of the detainees in this case, but many of the Justices seem to have a good handle on it. This later article is better than the AP story above: Supreme Court Hears the Case of Guantánamo.

Update on 2004-04-21: Eugene followed up with a few more posts on the subject, addressing some of the comments that I made here.