Both before and after the court’s decision yesterday in Boumediene , I wrote that if the Guantanamo detainees are afforded habeas rights, there would be (and is) little reason to consider any legislative response: “B ecause 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, that 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 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:
Continue reading at Balkinization …