What's the Rush?

Marty Lederman

Both before and after the Court's decision yesterday in Boumediene, I wrote that if the GTMO detainees are afforded habeas rights, there would be (and is) little reason to consider any legislative response: "Because the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?" (As David Barron and others have noted, Congress could, of course, try to actually suspend the writ as to a category of detainees; but I'm assuming that there would be little political support in Congress for such a law.)

There are many prominent voices in the current debate, however, who continue to insist that a new statutory framework for detention policy legislative action is imperative -- see, for example, the ubiquitous calls for creation of a new "national security court."

One of the most thoughtful such proponents is my co-blogger at Slate, Ben Wittes, whose forthcoming book is a very well-written, carefully reasoned and impassioned plea for Congress to step up to the plate, especially on the question of long-term detention.

Similarly, in today's Washington Post, Ben takes stock of Boumediene and comes away with this reaction: "Congress and the executive branch -- whether the Bush administration or its successor -- desperately need to enact a comprehensive legislative solution to the problem of detentions in the war against terrorism. . . . Congress cannot afford to shirk [its] burden any longer."

I must confess (as I have discussed with Ben) that I just don't understand the urgency. It seems to me that, based solely on Ben's own (quite compelling) account of the problems under the Bush detention system of the past six years, Boumediene is a dream come true -- an answer to Ben's prayers, a decision that in one fell swoop provides most (but not quite all) of what Ben would have the legislature do.

Let's review check Ben's bill of particulars:

1. "The majority of [GTMO] detainees . . . either deny the allegations against them -- with varying degrees of plausibility -- or choose not to address them in the primitive review mechanisms the government has set up. These detainees often present complex and murky issues of fact that any adjudicatory system has to resolve."

The habeas proceedings that the Court has mandated will finally provide the sort of sophisticated and unbiased system to adjudicate those complex and murky issues of fact.

2. "A reasonable system would do as much adjudication as possible in public" -- check

3. "creating for each detainee a rigorous set of factual findings and a record evaluating the decision to detain" -- check

4. "For detainees of the type held at Guantanamo, whom the laws of war fit uncomfortably, the detention decision ought not to reside in the military but in a civilian federal court" -- check

5. "In this proceeding, detainees should have real rights" -- check

6. "starting with representation by competent counsel" -- check

7. "cleared to see all evidence -- even classified evidence -- against their clients" -- check (or at the very least, the habeas courts could insist on such procedures if the government wishes to rely on such evidence)

8. "Detainees themselves need a more detailed summary of the evidence against them" -- check

9. "and a more meaningful opportunity to present evidence of their own" -- double-check (this is the principal point in the Kennedy opinion).

10. "Congress, in short, needs to design a system open enough for the public to know how scary some detainees really are and adversarial enough to credibly separate the wheat from the chaff."

That describes habeas to a tee.

Ben is channeling Justice Kennedy (or vice verse) here! The coincidences are downright eerie. So what's not to like about Boumediene? Finally, after six long years without any of these legal protections, the Court has now ensured that they will be provided. Why, then, the lament about Congress's sloth -- the cry for legislative internvention?

To be fair, the Boumediene decision does not provide everything on Ben's wish list.

Ben would actually have the legislature provide the detainees with greater procedural protections, at least two junctures -- one before and one after habeas proceedings:

First, although it is not clear in his (necessarily abbreviated) Op-Ed, Ben's new post to Convictions (which he published as I was writing this post) reveals Ben's hopes that many of these same protections would be provided to detainees in the military's administrative process in the first instance, before the question even gets before a habeas court. In other words, Ben would have Congress establish a new CSRT process that actually provides robust, fair, and impartial review of detention decisions -- what he calls "something serious upfront."

I, for one, surely would not complain about that. I could probably even be persuaded to support such a statutory improvement for prospective application -- that is, for future detention decisions. However, (i) it's a nonstarter for the Bush Administration; and (ii) it comes far too late in the day for all the current detainees, most of whom have been incarcerated (at GTMO and elsewhere) for over six years, and for whom the Pentagon detention process could not at this point be repaired in any way that would convince anyone of its fundamental fairness (certainly not in a timely fashion), given what has already transpired.

So this is surely a discrete topic for future legislation consideration -- but not anything that warrants immediate, urgent legislative attention.

Second, in cases where the habeas court denies a detainee's petition, Ben wishes to put in place a system that guarantees regular reconsideration, by a federal court, of the legality of continued detention: "Judicial supervision of these decisions," he writes, "must persist as long as the detentions persist, ensuring that the detentions are humane and remain necessary." (In Slate: "A reasonable legislative scheme would have the court's jurisdiction persist as long as the detention itself persists—something that habeas review does not do. [T]he government should have an affirmative obligation to argue periodically for continued detention.")

Who could argue with that?

But again, this would be a legislative provision of greater protections, above and beyond what the Court guaranteed yesterday -- as Ben puts it today, "what I'm advocating would be generous procedurally even compared with the regime Justice Kennedy has demanded."

OK, I'm on board. But the Bush Administration won't possibly stand for it; and in the meantime -- while we await an Administration that might be receptive to such a proposal -- it's certainly no reason to cast doubt on the value of the 90% of the loaf that the Boumediene decision provided.

* * * *

So far, then, no real reason for any precipitous congressional initiative. In fairness, however, I have not yet discussed one other, fairly important, matter -- the substantive standards for detention. Ben would have Congress prescribe such standards by statute, so that habeas courts (and possibly administrative tribunals) will have greater guidance about exactly what question it is that they are supposed to be answering.

I am not opposed, in theory, to such a statutory standard. HOWEVER --

Any such standard that would be acceptable to (and thus approved by) President Bush -- whose detention policies are based at least as much on the need for intelligence-gathering (i.e., "coercive" interrogation) as on incapacitation of dangerous combatants -- would almost certainly be much broader than anything I, or Ben, would find acceptable. Thus, this is, at most, a project for the next Administration.

Moreover, I am not as convinced as Ben that habeas courts cannot apply proper and meaningful detention standards (as did the Supreme Court in Hamdi, in a more traditional factual setting), based upon the AUMF and Congress's implicit adoption therein of the laws of war -- and upon the assumption that Congress has provided a detention authority that adapts the laws of war to this somewhat novel setting. (Examples of such analysis can be found in Part II of the Boumediene petitioners' brief and in Part V-A of this here article.)

I don't want to get deeply into this complex question here, because I know both (i) that Ben agrees with me that many of the cases can be resolved based on the laws of war, and (ii) that there will remain a residuum of hard cases where Ben and I will disagree on whether the laws of war provide any good analogy. I thus concede that, although I don't think the problem is as acute as Ben does, it is an appropriate topic for serious review . . . in the next Administration.

In the meantime, Ben, let's sit back, enjoy a relaxing summer, without and election-driven, last-minute legislative "fixes" (resulting in statutes that I'm confident Ben would deplore); and let's all take comfort in the fact that Anthony Kennedy and you are singing from the same hymnal! (Or perhaps he read an advance copy of Law and the Long War?)
Posted 11:24 AM by Marty Lederman [link]