Dear Dahlia, Jack, and Cliff:
Jack’s posting on Boumediene is a very insightful and balanced account of that decision and its potential consequences. He does not shrink from acknowledging the potential danger to the security of Americans that many of those detained at Guantanamo pose. Although he applauds Chief Justice Roberts’ dissent and finds the majority’s rhetoric “extravagant,” he reassuringly concludes (in contrast to the somewhat hysterical reaction to the decision from many on the right) that the Supreme Court “has once again left open the door for the political branches” to make the “difficult tradeoffs” involved in crafting a long-term detention policy.
On three points I would differ from or expand upon Jack’s thoughts. First, I do not agree that Boumediene “could turn out to be a huge deal or not a big deal at all.” It’s huge. Second, the court was very likely influenced in reaching this decision by the fact that the current administration has repeatedly, recklessly, and needlessly undermined the basis for Congress and the court to trust the executive branch to act lawfully. And third, both the rights of the detainee and the security against malefactors among them might be better off, had the administration not provided a process that was far too little, far too late. The enduring mystery will be why the administration refused to engage Congress (which itself is not without blame) early on with a timely resolution that would have protected both liberty and security and been sustained by the court.
Jack’s reason for thinking that Boumediene could turn out to be “not a big deal at all” is that the court leaves open “almost all possibilities except the elimination of some form of habeas review over Gitmo detentions.” But “some form of habeas review” is huge. Boumediene, like the cases that preceded it, is profoundly important not because of the sweep of the rights it guarantees to detainees; those rights may indeed turn out to be modest and judicial involvement quite deferential. It’s huge because of the extravagant claims of authority rejected. The detainee line of cases may have only “imposed modest due process restraints,” but the line between some due process and none is at the heart of liberty.
The court’s concerns for due process could not have been allayed by the administration’s early invocation of the disturbing notion that procedures for determining guilt or innocence could be truncated because terrorists attacking the United States deserve no better. That sentiment may well be true: The problem is that we can’t know in advance whether the person being held in detention is indeed such a person. More broadly, the court’s willingness to trust the executive branch to determine fairly whether particular detentions are justified was severely undermined by the administration’s violation of countless laws, which it implausibly justified by utterly unconvincing (and intended to be secret) torture memos and by implausibly defended violations of provisions of the Foreign Intelligence Survelliance Law and other enactments.
Remember that the administration’s first plan for dealing with detainees, announced by White House counsel Alberto Gonzales, was to set up military commissions with no judicial review. My Duke University colleague Chris Schroeder and I defended the plan to use military commissions against attack from some civil libertarians. Writing on Dec. 6, 2001, we argued in the pages of the Washington Post that
Military trials commissioned by the president have occurred since the beginning of the republic. In time of war, they represent an effective means of dealing with hostile combatants—especially those captured on foreign soil—free of evidentiary rules designed to serve the social goals of ordinary times. Military commissions can function partially or entirely in secret, avoiding disclosure of information that would compromise intelligence sources or reveal vulnerabilities in our defenses. And they can be expeditious.
We noted, however, a point that seemed obvious: The White House’s announced intention to preclude any form of judicial review would be fatal to the plan.
… [I]t cannot be constitutional to exclude the courts altogether. The attempt to do so might in fact come back to haunt the government, because any federal judge might assert the inherent constitutional power of the courts. The president and Congress would be well advised to provide for judicial review by a single designated federal appeals court, a special panel of judges established for the purpose or by the Supreme Court itself. Secret evidence alleged to be material to a conviction could be reviewed in camera by the judges or the justices. Independent review outside the executive branch is essential if the nation is to be assured that such military commissions are fairly designed to ascertain guilt and are limited to the extraordinary circumstances that alone can justify their use.
I quote this not (or at least, not exclusively) as an “I told you so.” The point we made seemed rather obvious, both then and now. If asked to do so by the president, Congress would have passed—and the court would have sustained—a sensible system of commission trials with some procedural safeguards and with perhaps some provision for continued detention of some individuals who could not be criminally convicted but who manifestly were a threat to U.S. security. Perhaps any judicial review could have been postponed until after the completion of commission trials—if trials had proceeded.
But people were simply detained year after year. Torture was used. A nation’s reputation in the world was tarnished. Trust was destroyed. And the presidency itself was weakened.
Bringing “some due process” to bear on all this is huge.