When Dzhokhar Tsarnaev was arrested Friday night, the celebration was instantly overtaken by an ideologically charged debate. Liberals argued that the government must respect Tsarnaev’s constitutional rights, by which they meant that he should be treated the same as any ordinary criminal suspect—informed of his Miranda rights, supplied with a lawyer, presented to court as soon as possible. The subtext was that the treatment of Tsarnaev would refute yet again the hated Bush administration’s claim that it needed expansive war powers to fight terrorists. Conservatives by contrast, notably Republican Sens. John McCain and Lindsey Graham, argued that the government should classify Tsarnaev as an enemy combatant, and thus deprive him of the rights of ordinary criminal suspects. For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war. …
Neither the knee-jerk liberal nor the knee-jerk conservative response appreciates all of these underlying dilemmas. For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. They forget that criminal procedural rights were cobbled together over decades by fallible judges, who were responding to the needs of the time. What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror. …
The isolation of terrorist suspects is hardly a new idea; it was used effectively in the 1970s by Germany, Italy, and other European democracies to defeat terrorist groups like the Red Army Faction and the Red Brigade. Here and now in the U.S., there are several advantages to this approach. It treats in the same manner anyone who engages in terrorism or mass killing and does not single out Muslims, who are burdened by the legacy of the declaration of war against al-Qaida. It gives the police broad powers to deal with cases of extraordinary violence without granting them similar powers for ordinary criminal investigations. It avoids any reference to war or martial law, skirting the massive legal and political complexities associated with war powers. And because Congress would make the rules, and judges would oversee the system, the courts would likely hold it constitutional.
— The New Law We Need in Order to Deal With Dzhokhar Tsarnaev: Congress should authorize the isolation and detention of suspected terrorists., Eric Posner*, Slate, yesterday
After reading that article this afternoon, I posted the following comment to it:
For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war? Really? For the entire left, Prof. Posner?
I’m a regular writer on a blog called Angry Bear, a left-of-center economics/politics/legal-issues blog, and yesterday, at the request of the guy who runs the blog, I posted a lengthy piece on these issues, at [this link; link corrected 4/25]. I began writing for that blog three years ago at the request of the guy who runs it, and a few of my pieces have been linked to or tweeted by some heavy-hitters. Including Paul Krugman (once), Brad DeLong, several times, and Naked Capitalism, also several times. (And occasionally by non-ideological blogs and tweeters as well, although that doesn’t matter here.) Suffice it to say that I’m of the left. Have been all my life. Almost literally; by the age of about six, I knew about McCarthyism, courtesy of my parents!
So I’m a good test case, and I invite Prof. Posner to read my blog post (if he can bear the thought and expend the time to read something written by a no-name) and point out where exactly I said or implied that I view the Tsarnaev brothers as examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. And, since he won’t, I invite all you readers here to do that. I wish you luck.
Posner spent the early and mid 2000s angling (I think) to join his father as a judge on the Seventh Circuit Court of Appeals, an effort that included co-authoring with that well-known civil libertarian John Yoo (google him, folks, if you don’t know who he is and therefore don’t get the reference and characterization). Posner has spent the time since his dalliance with Yoo trying to salvage his own reputation, fairly successfully, and this article is, I think, another piece in his ongoing attempt to rid himself of the Yoo-association taint; you never know when a Republican might win the White House next, and anyway, well, y’know.
But the next presidential inauguration is nearly four years away, and so to bide his time he’s apparently now auditioning as David Brooks’ ghostwriter. Brooks really, really does need one, and Posner has that sweeping-generalizations-and-categorizations thing down pat, which is a good start. All he needs now is to practice up on the faint-correlation-equals-definitive-causation thing. Or at least the a-series-of-statements-of-fact-invites-a-non-sequitur-conclusion technique, a David Brooks special. And no one will be the wiser that the columns are ghostwritten.
As a liberal, I can also attest, by the way, that it is not a characteristic of ours to forget that criminal procedural rights were cobbled together over decades by judges. Nor to forget, or not to, um, notice, that judges are fallible. We notice that; trust me. Some of us even think that some judges are deliberately fallible. In fact, some of us are pretty sure of this.
As for what’s appropriate for an age of terror, one thing that I’m pretty sure is not is that any statute passes constitutional muster because Congress would make the rules, and judges would oversee the system. Congress sort-of-normally makes the rules in detailed statutes, and judges sort-of-normally oversee the system that statutes establish, at least since Marbury v. Madison. So I don’t know why the courts would likely hold it constitutional because Congress would make the rules, and judges would oversee the system. At least until Professor Posner becomes a member of one of those courts.
And just to be clear, I do not consider the Tsarnaev brothers examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. This even though that may well have been why the older brother was able to gain the younger brother’s assistance. And even though I, too, believe that the drone war is immoral. And that there is no legitimate reason for this country to be involved in Afghanistan militarily, and that there has been no reason for a decade or so. It already looks likely that the younger brother was vulnerable to his older brother’s manipulations, probably mainly concerning the drone wars, but that the older brother had an agenda apart from the drone wars.***
*Eric Posner is a longtime professor at the University of Chicago Law School and a son of Seventh Circuit Court of Appeals judge Richard Posner.
**I had to fully edit the format of this piece once and then still make another formatting correction, because I’m still having trouble getting used to our new platform. After the second edit, the title disappeared, so I had to edit this a third time. Aaargh.
Steve Roth, Dan Crawford, and reader RJS have helped a lot via emails–thanks, guys!–but I’m still semi-clueless about it all. Apologies, readers. I think I finally got this one right. 4/23 at 3:04 p.m.
***In light of my exchange with Woolley in the comments below, I just amended this paragraph in my Slate Comment and here. 4/23/13 at 4:19 p.m.
Wellll, as I learned the hard way from perplexed emails to me about this post, our format here in WordPress does not distinguish blockquotes clearly enough. JazzBumpa, for example, said he wondered who had poisoned me–until he finally realized that that stuff was a blockquote. [Poisoned me? More like kidnapped me, and then waited for Stockholm Syndrome to kick in before he allowed me to post anything.] The solution, for the moment anyway? Italics.