Little Brother, Part 2

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.”

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.  The sequel, Homeland, is also now available.

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 constitutionAbleman, 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.

III. Conclusion

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.

13 responses to “Little Brother, Part 2

  1. If things had gotten this far I would have expected a Congressional impeachment to be more likely than individual state action.

  2. Of course, military officers who are detached to take on civilian jobs in the administration can be counted on to appear at any trials, hearings, etc. dressed in the full-dress uniform of their military service, even if they were working in (and being investigated for) work they did in a civilian capacity.

  3. I just thought of something. If state cops successfully bust up an (unconstitutional) federal operation without suing first, what, exactly, is the feds’ recourse?

    • This seems to be the key point. It’s dubious whether that Californian action described in the climax was strictly legal, but it’s even *more* dubious that there’d be anything meaningful the federal government could do about it.

      • This is where the political will comes into play. According to the “Ableman” rule, the Californian action was illegal. Thus, it is also very likely to be a criminal offence, and as this was done in an organised manner, also a criminal conspiracy. The offence included at least trespass into federal property, assault, destruction of federal property, interference with the official federal acts, and illegal freeing of a federal prisoner, all committed while armed. Thus, I’d wager that at least FBI has jurisdiction to investigate and detain perpetrators.

        Thus, if the federal government would use all the powers it has against the state government, it would start with a federal criminal investigation and arrest of the involved California officials, including the Governor. Of course, the Governor might use California police forces and national guard to stop these actions as illegal. Then, the federal government would have the reason to declare that the state is no longer under “republican form of government” and is in fact in insurrection, which would allow the use of military force.

        In practice, this escalation would stop somewhere, but it is likely that someone would spend a number of years as a guest of the Bureau of Prisons.

      • James Pollock

        Would they be able to get a conviction, though? I don’t think so. Aside from the very real possibility of jury nullification, there’s the fact that most states (not sure about California) allow use of force, even deadly force, to interrupt a felony in progress (holding someone illegally wouldn’t count, but actively torturing them probably would).

      • It depends, but I think they would be able to nail it. Most likely the trial, if and when such were held, would be moved to a location where it would be possible to get an untainted jury: i.e. a backwoods rural county somewhere in Midwest, with a politically suitable, “nullification-proof”, population and a Republican-appointed judge.

        Then, in the actual trial, the judge would most likely rule all evidence of torture and actual motivation “inadmissible”, quite legally. The state secrets doctrine, as applied in real life, would quite clearly prevent the California officials from presenting any proof or even insinuating that there was indeed a felony going on in the federal facility. Then, with proper jury instruction to concentrate only on the facts available, a conviction would surely result.

      • “in the actual trial, the judge would most likely rule all evidence of torture and actual motivation “inadmissible”, quite legally.”

        That’s not going to survive the interlocutory appeal. You can’t invoke “state secrets” for things that are not secret. I’d think that the USA or AUSA who tried that approach would be explaining things to the California bar disciipline committee shortly thereafter.

      • I hope you would be right. However, if you look at the cases of Khalid El-Masri and Maher Arar, where the complaints against the state, based on publicly available information, were thrown out, you get a different picture. In these cases, the government argued that it would not be able to answer the plaintiff’s allegations without revealing state secrets. Therefore, the case was thrown out.

        In our hypothetical trial, the government is clearly able to prove that California officials committed a number of deeds that would ordinarily be federal felonies. It is the defence that has the burden of proof to show that necessity defence (or similar) applies. Now, in a couple of cases, the government has been able to show that simply holding proceedings in such matter would jeopardise state secrets. There is no reason to believe that this would not be the case here. (The facts are identical: unconstitutional government action is public knowledge but officially classified.)

        As the defence is unable to meet its burden of proof (actually, prevented even from arguing necessity in front of jury), the case is hopeless.

        Of course, in this case, the state secrets doctrine would be applied to criminal proceedings, while previous cases have applied it to civil cases, but I think that it would not make any difference in the present SCOTUS.

      • James Pollock

        I just did a bit of quick research on the subject, and all I can find is cases where the state secrets doctrine is invoked against the plaintiff. I didn’t come across any cases of state secrets doctrine being invoked to preclude a defense. (Admittedly, I didn’t do anything like exhaustive legal research on the question.)
        I’m going to go so far as to predict that IF state secrets privilege were asserted to forestall a defense, it would be a violation of due process, and the state secrets doctrine would fall. Further, since the state secrets doctrine has proven to be an effective tool against meritorious claims against the U.S. (as in Reynolds), no executive would want to risk losing it by trying to apply it to a criminal case in such a way that it would preclude any defense from being mounted at all.
        Besides, such a wholesale application of state secrets would blow holes in the prosecution, too (before you can claim that defendant interfered in a federal operation and assaulted federal agents, you have to establish that there WAS a federal operation and which federal agents were present.)

      • Melanie Koleini

        Don’t all defendants have the right to exculpatory evidence? If the State claims they can’t allow evidence vital to the DEFENSE to be heard in open court, isn’t it a reasonable possibility that the court would dismiss the charges (especially if one of the defendants was the governor of CA)?

  4. Melanie Koleini

    Let’s say the state of California did sue the federal government before raiding any federal facilities. A federal judge orders Marcus’s immediate release. Then the state troopers break in to rescue Marcus with a valid court order.

    Then what? Marcus’s civil rights have been violated so he could presumably sue. But could any federal officers be charged with ANY crime in state or federal court? Presidential impeachment just requires getting enough congressmen to agree to do it but other than that, are all the federal employees safe from being charged with kidnapping and/or torture?

  5. Another possibility for the head of DHS being a major general it that he is retired. It’s not unknown for an officer, (especially one of higher rank), to continue using his rank after leaving the armed forces. When formally writing the person’s name you are supposed to make note that he is retired, (e.g. Major General Graeme Sutherland, USMC (ret.)), but in casual speech this isn’t done.

    This is more common in Commonwealth nations and even reaches the point of being a cliche in British literature.

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