Positive Liberty

I have a Sunday radio show — two hours long. I don’t usually mention it here on this blog, but this week, co-blogger Ed Brayton is one of my guests (Pamela Browne, wife of the late Harry Browne, is the other). I thought that this program might interest this fine intellectual crowd.

My show starts just after 3 PM Eastern. Ed is on during the second hour, where we’ll be talking about the recent habeas corpus decision.

You can listen online (on a two minute delay) at the Genesis Communications Network website.

If you call-in, say you heard about it at PositiveLiberty!

If you miss the show, starting a couple hours after it’s over, and for the next week, you can get the podcast.

Additional show details, including a station list, is at the DownsizeDC.org blog.

Please note: I don’t choose the commercials. One slot in each break goes to my show sponsors. If you listen, you’ll understand why I point this out.

Hardball delenda est.

Lately I’ve been hearing a very weird and ill-considered argument, and as far as I can tell it always goes unchallenged. I thought I’d put some numbers to it, and when I did, I found that the argument got even weirder.

Marc Ambinder (quoted by Publius at Obsidian Wings) states it as follows:

[McCain’s] concern now [] is procedural, rather than constitutional: the detainees’ having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.

Exposing intelligence secrets is obviously a valid concern, and one for which legislation can surely be crafted. But the flood of lawsuits is a total phantom.

There are now 2.2 million prisoners in our criminal justice system. Every single one of them may file a federal habeas petition whenever he pleases. The rest of us may also file habeas petitions on their behalf, again whenever we please.

This does not mean that the writ will always issue, or that a judicial hearing will necessarily result. It just means that you may ask for the writ, and if the judge agrees, he may issue one. If the judge thinks your petition is groundless, he is free to deny it — but at least you can ask. This is true of all 2.2 million prisoners, and of all 300 million or so free Americans.

Now come 355 detainees who would like the same right. “Oh no,” say the conservatives. “We’d be faced with a flood of lawsuits.”

Give me a break.

For roughly 2.2 million prisoners, there were collectively filed about 19,200 federal habeas petitions in 2004. Let’s assume that the Gitmo detainees — who often don’t even speak English — were to file at the same rate as ordinary prisoners. That would mean about three more petitions per year, a staggering .016% increase.

But let’s assume that these prisoners are extraordinarily motivated, which they may well be. We’ll assume that each of them files one petition, and that an outside agent files one for each of them as well. Assuming that none of these petitions were combined — which is highly unlikely — we would see a 3.6% increase in the total number of federal habeas petitions to review.

And how successful is a typical petition? According to the Department of Justice, 98% of federal habeas petitions are dismissed or denied on the merits, while only 2% result in new trial proceedings. (In death penalty cases, the rate can reach up to 40%, although none of the Gitmo detainees are facing death sentences as of this writing.)

Take our hypothetical group of highly motivated detainees, who were also — hypothetically — very lucky in their selection of habeas causes, such that there are no duplicate or combined petitions. This cohort now has 710 petitions pending before federal judges. From these, we may expect perhaps 14 new trials. Or, if writs end up issuing more like they do in death penalty cases, there will be 284 new trials (assuming that the non-combined habeas petitions are distributed such that only one of them is ever granted per prisoner — again, a highly favorable assumption).

Now consider that there were 69,575 total federal criminal cases filed in 2005. Even granting the most absurdly favorable assumptions imaginable, Gitmo habeas hearings will cause the federal caseload to go up by .4%.

Of course, if the detainees turn out to be more like ordinary U.S. prisoners in their habeas statistics, we may expect one additional trial about every twenty years or so. God forbid that Gitmo stays open that long, but — like I said — this just shows that the “flood” of lawsuits is an ill-considered and very strange reason to deny anyone the right to petition for habeas corpus.

(Yes, 2.2 million prisoners is a shameful statistic all by itself. For the reasons behind it, see this graph.)

If you read only one item today, it should be “A Setback for the State of Exception,” by Scott Horton.

Meanwhile, I’ll have a longish post up on Hegel’s Philosophy of Right later this evening, as the first installment of “Collectivism and Science Fiction.” The sections to read are here. Advance questions are welcome.