A First Take On Boumediene: Habeas Corpus and Error Correction

First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on what, for me, was the most fascinating part of Justice Kennedy’s majority opinion—his excursus on the purpose of the writ of habeas corpus.

Consider the following passage, found at pages 55–57 of the slip copy:

Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. . . .

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. [alterations in original]

In other words, the constitutional sufficiency of the CSRT procedures is only one small piece of the puzzle. The fact that there is a substantial likelihood of incorrect results, and that such results would cause immeasurable harm, is itself a reason to conclude that the DTA review process is an inadequate substitute for habeas. This may seem like doublespeak, because how can the process be truly constitutionally “adequate” if there is such a high probability of inaccuracy. Chief Justice Roberts certainly seems to think this is nuts in his dissent. But I think Kennedy is saying something else here—that accuracy is the desired end, and procedural sufficiency is but a means thereto.

If so, then such analysis would constitute a potentially sweeping retreat from one of the hallmarks of the Rehnquist Court’s habeas corpus jurisprudence (and the scholarship of the legendary Paul Bator): the idea that habeas corpus is not about error correction; that the “Great Writ” is meant to ensure fair proceedings, but not necessarily accurate proceedings. (For one troubling example of such a case, see Herrera v. Collins).

Kennedy is careful, of course, to note that this discussion is limited to the context of habeas petitions challenging detention by executive order, and not other forms of habeas review where there is less reason for skepticism. As he says on pg. 57, “Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here.” But I wonder if that’s not closing the barn door after the furry little things have already left, for it begs the question whether the “underlying detention proceedings” are “thorough,” and it suggests that habeas review is far broader whenever there are reasons to think that such proceedings are not.

The idea that habeas actually should be about error correction (or, at least, should also be about error correction) when there are reasons not to trust the underlying detention proceeding is reminiscent of the heyday of the Warren Court’s habeas jurisprudence. I’m just surprised to see it re-emerge here, and so prominently, at that…

I hope to have some more later on the relationship between Boumediene and the equally significant decision today in Munaf, but thought I’d pause here, for now.