Why We Still Need a Detention Statute

My first thoughts in response to the decision can be found here , but I have a few additional observations, largely in response to prior posts.

Marty and Emily are quite right to raise the question of whether the decision yesterday moots the need for legislation on detention. After all, the court has given detainees much of the process I and others have been arguing that Congress should give—at least on the surface. But there are key differences between the new nonstatutory regime and the type of system I would like to see enacted in law. And these differences are, in my judgment, all important.

The most significant difference is that habeas—even under Justice Kennedy’s ruling—is a back-end process. While we can expect that in the future it won’t take seven years for detainees to get hearings, it will still take a long time; just ask any state court inmate who has litigated a federal habeas case challenging his conviction. Moreover, because the habeas process follows and evaluates the intake review procedure for detention, its density and seriousness—as Justice Kennedy made abundantly clear—depends to a great degree on the integrity of those procedures. Anemic CSRT review will lead to more intense habeas review. Something serious upfront, by contrast, will lead to more deferential habeas review. Again, just ask that state court inmate, for whom the federal courts have developed layer upon layer of doctrinal deference to the procedures that put him away.

The idea of a national security court—at least as I envision it—is to place a serious review mechanism right up front. This would have three very significant benefits both for detainees and for the government over the CSRT-leading-to-habeas scheme that, as of yesterday, is now our national law. The first is that it would allow the innocent detainee a much earlier crack at a neutral tribunal. Instead of waiting around for the government’s review mechanisms and then challenging them in court, the court proceeding would become the review mechanism itself . Ask yourself this: Would Murat Kurnaz (or some other probably innocent detainee) have preferred that his CSRT have had reasonable rules and that Judge Joyce Hens Green—who in his habeas case much later raised serious questions about its integrity—have decided as an initial matter whether he was an enemy combatant or not? I think a reasonable detainee caught in a big misunderstanding would prefer a rigorous initial screening.

Second, because the government in my scheme would have gone through a rigorous process upfront, habeas courts—which the government is now constitutionally required to face—would have a serious record to which to defer. So the system would give a lot more certainty to the government regarding what standards, substantive and procedural, it has to meet for a detention to be kosher. Finally, a reasonable legislative scheme would have the court’s jurisdiction persist as long as the detention itself persists—something that habeas review does not do. Once a detainee loses his habeas case and appeals, it’s over for him—potentially forever. I believe the government should have an affirmative obligation to argue periodically for continued detention. Human rights groups have described proposals for such a detention regime as radical because they contemplate acknowledging in law the obvious fact that America preventively detains people on the basis of dangerousness. As a practical matter, however, what I’m advocating would be generous procedurally even compared with the regime Justice Kennedy has demanded.