June 30, 2004

· Politics

Eugene Volokh gravely considers the danger that a number of people designated by the government as enemy combatants—or rather, a number of Al Qaeda agents, or rather, 50,000 alleged enemy soliders of some foreign power—might avail of Rasul v Bush and file an avalanche of habeas corpus writs claiming they aren’t really enemy soldiers.[1] Thus, he fears, one of the fundamental tenets of the rule of law, affirmed this week by the Supreme Court, becomes a deadly weapon in the hands of our litigious enemies. I see a mini-series, Stalag Law, set in the not-too-distant future. In a nation suffocated by habeas writs inappropriately filed by malicious captured soldiers from their hotel-like detention centers, a tiny remnant of the 82nd Airborne Paralegal Division fights to clear the appalling backlog of cases …

Brad DeLong and (more appropriately) the Medium Lobster have already given this the treatment it deserves. I just want to add that this is the same Eugene Volokh who declared himself unwilling to discuss the topic of actual lawyers employed by an actual government of the United States searching for a legal rationalization for actual torture that members of that administration actually authorized. Look, like I said, blog about whatever you want. But here’s a hypo for you: Let’s say that you’re a respected legal scholar with strong interests in the protection of individual freedoms from the dead hand of the state. And let’s say that your government is found to have tortured people. And let’s say that its lawyers produce threadbare rationalizations saying that’s no big deal. And let’s say that in response you avoid the topic because it’s disgusting and because “if I had a choice in how to invest my scarce time, I’d rather not invest it here.” And let’s say that, instead, you choose to focus on the possibility that a captured foreign army might sue its way to victory within the U.S. courts. What conclusions might your readers draw given such (admittedly far-fetched) circumstances?

fn1. “Your honor, I swear, I have no idea why all 50,000 of us are dressed in similar uniforms.”

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I am Associate Professor of Sociology at Duke University. I’m affiliated with the Kenan Institute for Ethics, the Markets and Management Studies program, and the Duke Network Analysis Center.



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