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Dr. Jim Dobson is a likeable man of wit and intelligence whom I have long admired for his support for the family.
Recently, however, he—and his national political director, Tom Minnery—undertook on Dobson's nationally syndicated radio program to engage in a hypercritical distortion of an influential and powerful presentation on faith (a "Call to Renewal") by Sen. Obama in 2006.
The radio criticism of Obama has a number of facets to it: Dr. Dobson apparently believes the United States is a Christian nation rather than a nation of many faiths. Historically and today, there are indeed more Christians in America than believers from other faith traditions, but what follows from this? Sen. Obama would suggest respect and appreciation for the influence of Christianity while also appreciating that there are people of other faiths, and of no faith, who are not to be treated as second-class citizens. Surely Dr. Dobson agrees, right? So what's the point?
Sen. Obama also quoted a number of Old and New Testament passages, including some dietary laws that governed the Israelites (like not eating shellfish) to make the obvious point that even if one strictly followed this dietary restriction as a matter of faith in one's own life, it could not simply be codified to bind people of other faith traditions—at least not without majority approval and a lot of angry shellfish eaters.
Dr. Dobson thinks this mocks the Bible, but it is merely underscoring that we have an obligation in the public square to speak in universal or accessible terms.
Obama also said Jesus' Sermon on the Mount is "a passage that is so radical that it's doubtful that our own Defense Department would survive its application." OK, I guess we could ask whether or not Jesus would think the purveyors of preemptive war to be "peacemakers," but again Dr. Dobson's point is more than a little obscure. And to assert that Obama "is dragging biblical understanding through the gutter," more than a little absurd.
Dr. Dobson also attacks Obama for his support for abortion rights. Like Dobson, I disagree with Sen. Obama here as well. But Dobson has mischaracterized the senator's view. Obama believes the woman herself must decide the abortion question. The senator acknowledges the decision to be a "profoundly moral one" and one he would advise a mother to make in favor of life and only after talking with her clergyman. In a meeting with me and other faith leaders a week or so ago, the senator reiterated that he is not "pro-abortion," and that he wants to "discourage" the practice by encouraging personal responsibility as well as enhancing adoption and comprehensive education that would reduce the number of unwanted pregnancies.
Could the senator do more? Sure, and he is open to reasoned argument. Dr. Dobson should make one. The senator's point: All of us as we speak across religious lines need arguments beyond what we accept as doctrinal teaching in our particular faith tradition. How Dr. Dobson misinterprets this to suggest that either Dobson or my religious view would be excluded from the public debate or that "we have no right to fight for what we believe" is a mystery.
There is nothing in Sen. Obama's speech to suggest any denigration of faith generally, Christianity specifically, or Dr. Dobson personally. Far from it. Indeed, the tone, content, and purpose of the speech were all quite the opposite and obviously so.
In Sen. Obama's speeches, it's not surprising to hear references to Lincoln and Martin Luther King and Frederick Douglass. Sen. Obama regularly touches my Catholic soul as well by showing a genuine knowledge of the work of Dorothy Day. In this, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.
Don't misunderstand. Sen. Obama is not the equivalent of a televangelist, nor should he be. Having urged his liberal colleagues to see how much of American life is grounded in the Judeo-Christian tradition, Sen. Obama makes a request of conservatives like myself—namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.
This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."
Sen. Obama's approach to faith is strong, but it is not exclusionary. He genuinely seeks to have his efforts bridge the religious and ideological divides on issues ranging from abortion to the importance of the American family to health care that respects the objections of conscientious religious believers to AIDS, climate change, and human rights.
Like all Americans, Dr. Dobson has every right to advocate public policy informed by his abiding Christian faith. I will be counting on him to continue to do so, but he will improve his chances of success by not pretending to lack the most basic understanding of democracy, which we all know he has, or by misreading and mischaracterizing the views of one of the country's most eloquent defenders of the importance of faith—maybe since George Washington opined that it was indispensable to the prosperity of the nation.
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Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not:
For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.
Which is just to say that judges are capable of finding facts and applying the law. But the American legal system is shot through with institutions and doctrines that recognize that judges lack the competence to evaluate the decisions of specialized agencies that are charged with particular missions and that develop for that purpose qualified personnel, procedures, institutional memories, and all the other things that distinguish one institution from another. In such cases, judges defer. Judges defer to the fact-finding, policymaking, and legal interpretation of regulatory agencies, for example. They defer to the foreign policy judgments of the executive branch. And they have historically deferred to the judgments of the military—and no doubt will continue to do so, Boumediene or no Boumediene.
Orin thinks that the problem is one of fact-finding, but that is only one issue, and not the most important. The deeper problem is that no one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance. This has to be determined in incremental fashion, as events unfold, and only the military, with political guidance, is capable of making this judgment—a judgment about policy, security policy in particular.
The relevant question is whether a particular detainee would, if released, pose further danger to soldiers, civilians, and others, such that the benefits of continued detention exceed the many costs—including the financial cost, diplomatic pressure from foreign countries, harm to America's reputation (if any), and the harm to the individual in question. The answer in particular cases will turn on the particular terror-making talents of the detainee in question, his leadership abilities, the depth of his radicalism, the type of country to which he is to be returned (including whether authorities can keep tabs on him), the military's current logistical capacities, the current overall threat level, and much more. Note that given all these costs of detention, the release of someone who turns out to be dangerous is not necessarily an error—the judgment that the military is incompetent because it has released people who have gone back to fight is too hasty.
In any event, weighing all these factors is in the nature of a discretionary, administrative task, like that of deciding when and where to drop a bomb; judges are in no position to answer them. (I doubt that Congress is capable of, or willing to, answer them either; it would require candor that is politically inexpedient and a degree of foresight that no one possesses.) If we were to accept the implicit worldview in Deborah's post, one that does not take seriously the distinction between the judiciary and other institutions other than insisting that judges are superior, we ought to sheath judges in Kevlar robes and mount them on tanks, where they could find facts, develop a common law of national security, and enjoin soldiers to hold fire until they make the proper demonstration that a potential target poses a military threat and that destroying it will not violate the laws of war.
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Deb, I had the late great James Vorenberg for criminal procedure. He was a wonderful teacher and mentor; I was sad that he passed away before I became a criminal-procedure professor myself. I'm not sure why you think the identity of my criminal-procedure professor back in law school might be relevant. But for what it's worth, I had Vorenberg.
On the substance, I understand your argument to be that judges are as good as anyone to decide such questions. That is, even if judges are going to have a hard time with such issues, no one else is likely to be better. To reach this conclusion, though, I would think we need to make two assumptions. The first assumption is that familiarity with a military campaign and expertise in intelligence operations does not create any institutional advantage in identifying who is a terrorist. That is, identifying terrorists is a general skill; a generalist judge with no background or experience is at no disadvantage relative to those with more subject matter expertise. Second, we need to assume that the expertise and abilities of the judiciary as a whole are shared by each individual member of the judiciary. In your post, you treat "the judges" as a collective entity and discuss what "judges" can do and have done. But individual determinations are not made by the judiciary as a whole but rather by individual judges of varied experience, intelligence, and temperament.
Are these assumptions two valid? I assume you believe so, but I am not so sure. In any event, now that Boumediene has given this job to the courts, I trust you and I both hope that judges will do the best job they can with the difficult task ahead. No matter how good or bad they are at the job, that job is now theirs.
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Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.
Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as "likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified." Let's take this in two steps. First, the "classified" part isn't obviously a problem for judges. Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the federal law passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that.
As for the nature of the evidence itself, I don't know anyone—military or civilian—who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible. Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited. But the claim that deciding how to handle hearsay evidence of dubious reliability is unfamiliar to Article III judges? Guess we must have had different profs for criminal procedure.
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Via the Washington Post and the military's press shop in Baghdad, I learned this morning that the first military prosecution of a civilian contractor in Iraq has ended in a guilty plea. According to today's story:
Also Monday, the U.S. military announced that a Canadian man working as an interpreter for the U.S. military in Iraq was sentenced to five months of confinement after pleading guilty in the stabbing of a colleague in February.
The contractor, Alaa "Alex" Mohammad Ali, was the first civilian prosecuted since a 2006 amendment to the Uniform Code of Military Justice allowed the military to court-martial civilian contractors.
According to the military, Ali stabbed another contractor with a knife at a military facility on Feb. 23 near Hit, in western Iraq. A judge dropped the most serious charge filed against him, aggravated assault, after Ali agreed to plead guilty to obtaining a knife without permission, disposing of the weapon after the assault and lying to military investigators.
The prosecution marked the first time that the military's justice system was used to prosecute a civilian contractor on the battlefield since at least 1968. The change came about because of a 2006 amendment to the Uniform Code of Military Justice, inserted at the last minute by Sen. Lindsay Graham, which expanded the UCMJ's jurisdiction to cover civilians during "contingency operations" (like Iraq and Afghanistan) in addition to times of declared war.
The change generated a great deal of legal commentary and raised many thorny legal questions as to whether it was constitutional to apply military law to civilians. The best precedent on the matter is the Supreme Court's decision in Reid vs. Covert, in which the court strongly hinted in a footnote that it would bless such prosecutions in an area of active hostility. Add that to the Supreme Court's favorable view of military justice, as seen in the recent Guantanamo cases, and it's likely that this conviction would have been affirmed.
But, of course, this case ended in a plea bargain, so we likely won't get the chance to see any of those questions resolved on appeal. I predict that the military will continue to use its UCMJ authority to prosecute contractors—but only in those rare cases where both the Justice Department and local authorities refuse to act.