Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric’s last post . As much as I love the imagery of Scalia astride a tank, that’s of course not particularly what I was saying.
But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts “defer” to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn’t worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.
The far more disturbing part of Eric’s post, though, is this: “[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance.” This isn’t a statement about the relative competence of different institutions. It’s a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can’t be described, defined, or constrained by the rule of law. If that’s a fair account of the point, Eric, we’ll just have to agree to disagree.