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Friday, April 02, 2004
Co-bloggers nearly always refer to one another by first name, but I can't imagine referring to a post by Volokh with "Eugene says," even if I were commenting on a Jacob Levy post that used precisely that phrase.Being a UCLA student and having Prof. Volokh as a professor, I must add that I couldn't imagine calling him Eugene. He has invited me to several times. For instance, when he calls me on the phone to discuss Law Review stuff, he always says, "Eugene here." But I always call him Prof. Volokh. It's the same with my Law Skills prof; he always says Jason but I call him Prof. Light. Maybe it's my long years in the military, or just my desire to be a professor myself someday, but I just can't shake the social order of the university.
Tuesday, March 30, 2004
I agree with the Government that recital of the pledge is a patriotic exercise, not a religious one. Just because "under God" is contained in the pledge does not alter the inherent patriotism of the event. Students are affirming their belief in the values and ideals of our country, and vowing to honor the symbols that reflect those beliefs. If they disagree with the notion that belief in a supreme being heavily influenced the founding of our Nation, they can simply not recite those two words in the Pledge, or not recite it at all. But I do not buy that these two options amount to an unconstitutional coercion. Yes, peer pressure sucks, but there must be more than a stare, giggle, or finger-pointing to violate the First Amendment.
Finally, I want to mention the fact that I am an adherent to the concept of "ceremonial deism." I believe that there are some religious words, phrases and practices that, although appearing religious on their faces, and perhaps orginally started as a purely religious matter, after continuous repetition throughout history in a secular manner become non-religious in nature.
Even in Communist Russia, the leader of the world's most powerful Marxist regime used the word "God". Using the word does not turn you into Pat Robertson.
"When the commander-in-chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not prepare to defend its judgments in a federal courtroom," wrote Solicitor General Theodore Olson, on behalf of the government, which is seeking affirmation of a lower court ruling saying the detention of Yaser Hamdi is constitutional.The brief continues:
"In this extraordinarily sensitive national security context, the [Supreme] Court should be wary of adopting a means of testing the validity of an enemy combatant's detention that defeats one of the important military functions served by that detention," Olson wrote.The actual brief can be found here. The Government's arguments seem rather solid. First, it argues that the Court has said in two cases during the WWII/Korea War era that US citizenship provides no immunity from detainment in a POW camp. Classic stare decisis, and wartime stare decisis is the strongest kind. Second, it argues that, in accordance with Justice Jackson's opinion in Youngstown Sheet & Tube Co., the President's power is at its zenith during times of war. Since determining whether someone is a enemy combatant is an area where the military (as agent for the President) has a unique competency in, and that arguably most Article III judges have zero experience with, the decision of the Executive in this area demands the highest degree of deference. Finally, DOJ concedes that SOME level of habeus review is warranted. However, since the military deserves high deference, the government should only have to show a rational basis for the detention, supported by SOME showing of factual basis. Not the typical preponderance that is required in habeas procedings.
This brief was far better written than the last DOJ brief that I told you about here in Rasul v. US (the Guantanomo non-citizen case). Instead of following a scorched-earth policy that flips the bird to the court, in this week's brief, the DOJ conceded what it had to concede in order to gain credibility with the tribunal. By conceding limited jurisdiction to the court, it allows the Supreme Court to institute an extremely deferential standard in Habeas proceedings. Given the Rehnquist court's current war on habeas, I think the outcome in this will be easy to predict. And while, in other habeas cases, the liberals on the court have dissented, I don't think this is a sympathetic case. I predict at least a 7-2 decision, if not 9-0.
Sunday, March 28, 2004
How humbling. Could it be that one of the mysterious 9 is perusing my site? Perhaps pondering intently over my musings about military jurisprudence? After all, they did load the site twice, and spent over 1 minute viewing the contents! Maybe they are using me to channel the long-forgotten intent of our dead white framers! Might my infamous post, THIS MARINE HAS BALLS, find its way into the United States Reports? One can only dream...