In the first part of our review of Cory Doctorow’s Little Brother we focused on the federal government’s legal response to a second 9/11-scale terrorist attack on the United States. In this post, we continue that analysis and conclude by considering “the response to the response.”
We concluded last time that the federal government’s initial legal response was unconstitutional. In fact, it was probably settled law by the time the second attack occurred that enemy combatants, particularly US citizens on US soil, had various legal rights that Marcus and his friends were denied. But there’s another issue with the government’s response that bears mentioning and that’s the role of the military.
I. The Military and Civilian Law Enforcement
The head of the Bay Area Department of Homeland Security is described as “Major General Graeme Sutherland.” One of the primary antagonists in the book is also revealed to be a member of the military, and in fact the Department of Homeland Security holds a “closed, military tribunal” to investigate her. Does any of this make sense?
Ordinarily the military is not involved in the execution of the law. In fact, there is a law, the Posse Comitatus Act, that specifically prohibits using the military for this purpose unless expressly authorized by the Constitution or by Congress. But of course Congress is free to provide an exception or even to repeal the PCA outright.
Nor is it entirely unusual for there to be members of the military working for the Department of Homeland Security. For example, during peacetime at least, the United States Coast Guard is part of the DHS. Of course, “Major General” is not a Coast Guard rank, so something else must be going on here, but the point is that not all of the military branches are under the Department of Defense, today or historically. Following the terrorist attack it is possible that either the DHS was militarized or that members of the military were put in control of it.
So while those details feel weird—and I think they are meant to—they are not actually implausible.
II. The Constitutional Crisis
Now we come to the big issue. Having established that the federal government was violating the law, would it have been legal for the state government to have broken into the federal facility, arrested the federal officers, and evicted the federal police from San Francisco? (I’ll let stand the agreement to have the California Senate oversee future DHS activity in the state, since presumably the federal government can agree to state oversight if it wants to.)
Part of the trouble here is figuring out California’s legal position. Its position could be that, under California law, the prisoners were being kidnapped and the state police were responding to a crime. To which the federal government could respond, no, we have a legal right to do what we are doing under federal law, and under the Supremacy Clause you can go jump in a lake. The question is whether California had a right to attempt to arrest the federal officers first and sort it out in court later or whether it would have to file a lawsuit first.
Unfortunately for California, the answer is that it should have sued first. A longstanding and clear rule is that state governments simply may not interfere with a federal prisoner. Ableman v. Booth, 62 U.S. 506 (1858). A modern Tennessee Supreme Court case summarized the Ableman case thus:
The United States Supreme Court ruled that the state court lacked the power to order the release of a federal prisoner, even when the custody violated the federal constitution. Ableman, 62 U.S. (21 How.) at 523–24. Citing the nature of the dual sovereignties, the Court held that when a “prisoner is within the dominion and jurisdiction of” the federal government, “neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties.” Id. at 523.
Faulkner v. State, 226 S.W.3d 358, 363 (Tenn. 2007) (emphasis added). It’s a good thing that the feds gave up quietly, then. Historically it has not gone well when a state has attacked a federal military installation located in a bay.
And what about the mayor of San Francisco kicking the federal police (which I take to mean either the FBI or the DHS) out of town? That one is pretty implausible. Whatever right the local government may or may not have had to disrupt the federal government’s illegal operations, I’d be surprised if San Francisco had a “the mayor can just make you leave town on a whim” ordinance. That said, at this point the government may have had so much egg on its face over the whole thing that it left voluntarily rather than put up a fight.
On the whole I give Little Brother good marks for legal accuracy. Or rather plausibility. The major error can be partly excused for plot pacing reasons; the climax of the book wouldn’t have worked as well if, instead of the daring rescue by state troopers Marcus spent a few weeks languishing in a cell waiting for a district court to enter a preliminary injunction. I’m also willing to give Cory Doctorow some slack on account of his being a dual Canadian-British citizen. The Ableman rule is one of those finer points of US-style federalism that probably seems a bit weird to those unfamiliar with the system.
That’s it for Little Brother for now. We’ll be returning to comic books on Friday, though we’ll be taking a look at Homeland in a few weeks, and we may also have a guest post about one of Cory’s other recent novels, Pirate Cinema.