Judges on Tanks

Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not:

For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.

Which is just to say that judges are capable of finding facts and applying the law. But the American legal system is shot through with institutions and doctrines that recognize that judges lack the competence to evaluate the decisions of specialized agencies that are charged with particular missions and that develop for that purpose qualified personnel, procedures, institutional memories, and all the other things that distinguish one institution from another. In such cases, judges defer. Judges defer to the fact-finding, policymaking, and legal interpretation of regulatory agencies, for example. They defer to the foreign policy judgments of the executive branch. And they have historically deferred to the judgments of the military—and no doubt will continue to do so, Boumediene or no Boumediene .

Orin thinks that the problem is one of fact-finding, but that is only one issue, and not the most important. The deeper problem is that no 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 has to be determined in incremental fashion, as events unfold, and only the military, with political guidance, is capable of making this judgment—a judgment about policy, security policy in particular.

The relevant question is whether a particular detainee would, if released, pose further danger to soldiers, civilians, and others, such that the benefits of continued detention exceed the many costs—including the financial cost, diplomatic pressure from foreign countries, harm to America’s reputation (if any), and the harm to the individual in question. The answer in particular cases will turn on the particular terror-making talents of the detainee in question, his leadership abilities, the depth of his radicalism, the type of country to which he is to be returned (including whether authorities can keep tabs on him), the military’s current logistical capacities, the current overall threat level, and much more. Note that given all these costs of detention, the release of someone who turns out to be dangerous is not necessarily an error—the judgment that the military is incompetent because it has released people who have gone back to fight is too hasty.

In any event, weighing all these factors is in the nature of a discretionary, administrative task, like that of deciding when and where to drop a bomb; judges are in no position to answer them. (I doubt that Congress is capable of, or willing to, answer them either; it would require candor that is politically inexpedient and a degree of foresight that no one possesses.) If we were to accept the implicit worldview in Deborah’s post, one that does not take seriously the distinction between the judiciary and other institutions other than insisting that judges are superior, we ought to sheath judges in Kevlar robes and mount them on tanks, where they could find facts, develop a common law of national security, and enjoin soldiers to hold fire until they make the proper demonstration that a potential target poses a military threat and that destroying it will not violate the laws of war.