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Wednesday, December 21, 2005

Inconsistency, Legal Argument, and the War on Terror

Steve notes below Judge Luttig's scathing opinion for the court in response to the government's procedural shenanigans in the Padilla case. After explaining why the government should not be allowed to evade Supreme Court scrutiny by expeditiously deciding that Padilla can be put through the criminal justice system after all, Luttig notes that the government's refusal to come clean with the court and its inconsistent stance on Padilla end up implying that either Padilla has been detained for years on a mistake, or that the pressing importance of being able to detain American citizens is not such a big deal after all. As Luttig puts it:

(T)hese impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Meanwhile, over at my home blog, I've been joining Marty Lederman in criticizing the administration's alleged interpretation of the Authorization for the Use of Military Force, and in particular suggesting that there is a tension between the administation claims about the breadth of AUMF, and the administration claims that unless we renews the Patriot Act ASAP, Al Qaeda will strike again. (See my posts here and here). The smartest response is from Anthony Rickey, who argues that it is unfair to hold a political speech to the standards of a legal brief.

But it is not as if the government's legal briefs are much more consistent (when it bothers to brief the court at all), which is Judge Luttig's point. One of Anthony's commenters thinks this is nothing to complain about-- lawyers press every argument they've got, that's their job. But of course, it's not exactly the job of government lawyers and the solicitor general's office, and it's really not the job of the President, or whoever makes the ultimate decision about executive branch interpretation of the law and the constitution. If they executive interpretations of the law to be respected as co-equal to the Supreme Court's, they are supposed to be good faith legal decisionmakers. And while I think much, much, of the criticism of the government's legal arguments during the war on terror is overblown, I think recent events make it increasingly less likely that the President takes his constitutional obligations seriously. Others yawn and say that this is life in post-TV politics, but I have hold the President's legal machinery to higher standards. He is not a 2-bit Manhattan lawyer suing Wal-Mart.
If the President thinks, with Justice Thomas, that courts should stay out of the war on terror almost entirely, he should simply stop sending his lawyers to show up in court. We could then argue about the extent of inherent executive power, departmentalism, and so on. But that does not appear to be the President's theory. Indeed, it is not clear that there is any theory here at all. To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to "take care . . . be faithfully executed."

Posted by Will Baude on December 21, 2005 at 05:57 PM in Law and Politics | Permalink


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Will -- Just vis-a-vis the meaning of the AUMF, interesting aspects of the debate were previewed earlier this year in the Harvard Law Review, thanks to Jack Goldsmith and Curtis Bradley's article on "Congressional Authorization and the War on Terrorism," and the various responses (and rejoinder) thereto.

What gets me is the "heads I win, tails you lose" quality of the argument. Either the AUMF authorizes everything, or it _can't_ (the necessary conclusion if the President's authority in this field is constitutionally inherent). Thus, a separate, yet equally important debate here is how much a use of force authorization/declaration of war actually authorizes. The answer, at least before Hamdi, was "not much." Now, it's at least slightly less clear.

Posted by: Steve Vladeck | Dec 22, 2005 2:22:33 PM

Just my opinion but I think there is a substantive systemic difference between raising a variety of arguments (assuming plausibilty as a baseline for raising them) and, say, asserting a rationale for a policy based upon a stated set of facts. A legal fiction is not the same thing as tinkering with the factual record. It's the latter that I find more troubling, and I think that's why the Fourth Circuit reacted as it did.

Lawyers make strategic decisions like this one all the time, but the difference here is that we would expect, reasonably in my opinion, less gamesmanship from the administration, if for no other reason than that private sector lawyers generally speaking are not asserting a rationale for exective authority. Perhaps the administration's approach is best explained by the "law as another form of politics" notion. If there's one thing this adminstration has been consistent about, it's that politics trumps everything so that the notions of professionalism and the like are cast aside. So it would make sense to treat legal manouevering as just that--another stylized form of gamesmanship. (As an aside, I think I if was Rove, I'd make sure I checked my legal gamesmanship out with a DOJ careerist beforehand.) I think the interesting question is the internal legal system question of how a careerist who takes legal culture seriously will resolve the dilemma between a predisposition to take the government seriously and a gnawing sense that the government might be playing a cynical game. Lutting may be a harbinger of how this conflict will play out.

Posted by: sparky | Dec 22, 2005 10:50:32 AM

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