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First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.
Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.
As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.
Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.
In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.
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I was on Meet the Press only once. Paired with Mario Cuomo, for whom Tim once worked, other lesser hosts might be expected to favor their old boss. Not Tim. Tim was indeed a partisan—for truth as best as it could be ascertained by the human mind in the exploration of opposing points of view.
On that Sunday, it was my task to defend the proposition that it was improper to deny John Roberts' nomination to the court on the basis of his Catholic faith. Prominent scholars and senators had argued that Roberts was unsuitable for the bench given his Catholicism and the church's well-known opposition to abortion. This line of questioning was contrary to the prohibition of religious-test oaths and the spirit of the free exercise clause, I argued. Moreover, I contended, Catholic teaching treated those who stand for judicial post differently from legislators and the executive. Gov. Cuomo insisted that the questioning was both proper and that the church made no such distinction, with highly conservative prelates even insisting that Catholic public figures be denied communion if they didn't toe the church line.
Several things were immediately apparent: Tim likely knew as much or more about the topic than either of his guests, and he was not about to let either of us dodge the more difficult nuances of the question. Indeed, somewhat ironically now, in light of my own recent denial of communion for endorsing Sen. Obama, Tim would ask us about such threatened refusals of the sacrament. The colloquy went like this:
MR. RUSSERT: Professor, many Catholic politicians are faced with the following prospect, that individual bishops in different dioceses can refuse them Communion if they are seen as proponents of abortion. If, in fact, as you said, the Supreme Court in effect formulated the law in Roe vs. Wade, if a Catholic justice of the Court doesn't take assertive steps to undo that law, could they be denied Communion in respective dioceses and is that an appropriate pressure from the Catholic Church?
PROF. KMIEC: ... Cardinal McCarrick here in Washington said it the best. This is a question of pastoral counseling. It's not something that really should be dealt with at the Communion rail. ... The sacraments shouldn't be used as a weapon. ... But again, the Supreme Court of the United States really needs to [re-] examine [abortion] as a matter of law ... not as a matter of Catholic faith ... not as a matter of any other personal philosophy. It's a question of whether abortion ... can be found in the text and history and structure of the Constitution.
At that point, I decided to interject a bit of Kmiec interpretive theory on the Constitution that is not presently shared by the court itself: namely that constitutional text ought to be interpreted in light of the declared "self-evident truth" of the Declaration of Independence that we are "created equal" with an "unalienable right to life."
"There's no conflict between John Roberts' faith and this constitutional system," I argued, "because this constitutional system is premised upon the dignity of the human person." As a matter of his own Catholic faith, I speculated that Tim would let my advocacy pass without rebuttal. Silly me. Of course, Tim would not personally inject his Catholic view. Rather, in fidelity to the high standards of journalism that by disciplined mind and hard work became part of Tim when he left politics, he adroitly questioned the governor, illustrating that the way Catholic jurists like Justice Scalia avoid an irreconcilable conflict between faith and law is not with my fancy professorial theory but simply by sticking to the text of the Constitution, which says nothing about the subject.
Cuomo affirmed the Scalia position, and in one masterful move, Tim brought the conversation back to its original focus, illustrating in a unique way some common ground. Whether Cuomo realized it or not, his affirmation of Scalia underscored my original contention that if judges follow their intended role, they have no moral complicity in the laws they interpret. But it also allowed Cuomo an opening to reaffirm his longstanding view that Catholics cannot just impose their doctrine on their non-Catholic American neighbors—at least without extended and respectful argument in the democratic process (or, I might add, persuading jurists that the Constitution has an intended and inescapable natural law foundation).
One thing I know for sure, St. Peter is in no position to give Tim a hard time at the gate. If there is any delay whatsoever, look for Tim to sit the onetime fishermen and early church organizer down at the table and with that smiling but tenaciously prepared look ask, as heavenly PowerPoint goes up on the screen of judgment: "Isn't it true, Peter, that earlier on the night before he died, you denied him three times, and yet here you are today the keeper of the gate of the kingdom. How do you explain that?" Like so many other guests on Meet the Press when confronted with the thoroughness of Tim's preparations revealing an undeniable inconsistency of their own words, I suspect Peter might be tempted to bob and weave his way to some sort of answer. Advice to the first pontiff: Don't try it. Just wave Tim on through—he more than deserves it.
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I am heartened by Ben's agreement that any legislative initiatives should await the next administration and should not be driven by election-year pressures (as the MCA was). Such delay would also have the virtue of allowing the legislature to see just how the habeas system is working here and what might be needed to supplement the district court's handiwork.
As for whether such a statutory supplement will be beneficial or necessary come June 2009: I doubt it. Not a very extensive amendment, anyway.
Ben argues that the habeas proceedings will now occur "with few known rules and procedures." I don't quite understand this. It's not as if this is the first time that habeas courts will ever have considered allegations of unlawful executive detention. There are plenty of rules and procedures. Indeed, there are hardly any sets of rules and procedures more well-established in our law than those that apply to habeas corpus proceedings. When asked at oral argument what would happen in such proceedings, Seth Waxman's response was (appropriately) as boilerplate as it gets:
[In] the cases in front of Judge Green ... the government has filed its factual return under the procedures, under the long-established habeas procedures under [section] 2243. [T]he burden is now on us. She has already ruled that with respect to secret information or classified information, [t]here are the safeguards that will govern. And it is simply on us now to adduce and present evidence to try ... to shoulder the burden we have.
If I'm not mistaken, when Ben writes of "few known rules and procedures," I think he is referring primarily to the fairly discrete question of how classified information should be treated in these proceedings. I agree that this is an important question but one that is not unknown to trial court judges in habeas and other contexts.
Although I (like Justice Kennedy) am fairly confident that Judge Lamberth and his colleagues will handle classified information in a fair and careful manner (indeed, probably with too much deference to the government—Kennedy's citation to Reynolds was decidedly not my favorite part of the opinion)—I would certainly be receptive to thoughtful legislative consideration of just how classified information should be handled in these cases. For example, I've repeatedly argued—see, e.g., here, here and here—that there is no justification for the executive to have classified the facts about how we have interrogated the detainees, particularly since that information is known to the detainees themselves, and they are (in theory) free to share it with the world. I would welcome a law clarifying that what our government does to detainees in its custody is not classified information.
In his dissent, the chief justice also mentioned questions of access to military officers overseas who might have relevant information. I'll bet habeas courts could easily deal with such issues—but if they fail, sure, a discrete statute specifying how to deal with that question might be in order, too.
Apart from these fairly specific questions, however, are there other "rules of the road" that are undefined in the ordinary habeas procedures and that Congress should thus prescribe? I can't think of many. And so while perhaps there are some discrete areas that could benefit from tailored legislative specifications, the basic framework of habeas corpus law should be more than adequate to the task.
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Many thanks to Marty for the kind words and thoughtful critique of my proposal. Two thoughts in initial response (I will probably have more later):
First, I did not mean my op-ed to suggest that Congress should act precipitously in the run-up to the election. While I do feel a sense of urgency about legislation in this area, it is far more important at this stage for any legislation to reflect the considered judgment of Congress and to emerge from a relationship of trust between Congress and the executive branch than for it to happen in the next six months. I hate quoting myself, but I really can’t say it better than I did in the conclusion of my book:
It is too late for the Bush administration. It has no trust on Capitol Hill, and it has no time. And even at this late date, it has too much ambivalence about the project—too much residual insistence that it has all the power it needs. ... Bush also has too much baggage. Locked in a death grip with its critics, his administration can at most speak credibly to a fraction of the country. For presidential leadership in this arena, America will have to await Bush’s successor.
So, yes, Marty, I’m happy to spend the summer relaxing and talking about legislation—instead of actually seeing Congress pass legislation. And I’m delighted that you and I have so much common ground on the ultimate substance of that legislation.
Second, in my previous post, I outlined a set of practical reasons why I believe a legislative detention regime that places robust review of detentions at the front end makes more sense than simply treating all detainees as “enemy combatants” who challenge their status eventually in habeas corpus proceedings. These practical reasons, in my judgment, involve advantages both for detainees (innocent ones, at least) and for the government.
But there’s another reason as well for my support of a legislative approach, one on which I suspect Marty and I disagree pretty fundamentally: While I have always supported robust judicial review of detentions, I don’t want the rules of the road in counterterrorism written and defined by judges.
This point has both practical dimensions and philosophical (almost spiritual) dimensions as well. The practical argument is simple: Right now, we are going to face something like 200 habeas cases litigated with few known rules and procedures—and no agreed-upon substantive law. These questions are not interstitial legislative matters. They are foundational questions of the law of counterterrorism. And unless Congress gets involved, their answers will be defined by district judges (and later by appellate judges) in a process that will look pretty chaotic, that will take years, and that may or may not at day’s end produce a system that properly balances the myriad weighty interests at stake. More likely than not, the result will be constitutional rulings that the political system will be unable to amend to the extent they prove ill-advised. I can’t see how that process is preferable to a comprehensive consideration of the appropriate standards, evidentiary burdens, and procedures by the Congress.
On a philosophical level, I confess myself utterly offended by the notion that a coordinate branch of government in this democracy—to wit, the legislative branch—would cede such a profound lawmaking exercise to common-law dialogue between the executive branch, the judiciary, and a group of habeas petitioners. We can all pretend that current law answers the most basic questions here, but it most emphatically does not. And we therefore face a basic choice of which branch of government we wish would design what, one way or another, will be a new system of law to govern a set of problems we have not confronted before. I don’t think you have to be Justice Scalia to object to the notion of delegating that power to unelected judges. In a very fifth-grade-civics kind of way, I believe it is the burden of the legislature to answer the foundational questions we face. And I'm not willing to see either Congress slough off that burden on the courts or the courts relieve Congress of it.