What Comes Next?

by Julian Davis Mortenson

Thanks very much to Opinio Juris for including me in this conversation. I look forward to trading ideas with the terrific group of commentators that Roger and his colleagues have lined up. I should admit from the outset that my instincts here are not exactly neutral: while I now teach national security and international law at Fordham, I was a member of WilmerHale’s Boumediene team and one of the principal drafters of our briefs in the case. I hope the result of that background here will be a deep grounding in specifics rather than any unfair bias.

I want to start off with two points, one related to the majority’s peculiar choices about narrative structure and one directed at the bottom-line question we are all struggling to understand: what comes next?

(1) The CSRT Process: It is remarkable that such a favorable majority decision relies on such a colorless description of the CSRT process. This was an absolutely central focus of the litigation, but the majority operates at so high a level of abstraction that some of Roberts’ criticisms take on a rhetorical force that is quite undeserved. The majority notes that detainees could submit “reasonably available” evidence, but doesn’t touch on extensive evidence that this standard appears rarely (if ever) to have extended to anything or anyone besides other detainees at Guantanamo Bay. It spends no time describing the remorseless vise that pinned detainees between a one-sided body of unconfrontable secret evidence on one hand and a legal presumption that all this evidence is accurate on the other. Unless I missed it, the opinion doesn’t even mention the do-overs that were ordered in cases where a detainee was exonerated by his first CSRT proceeding.

Perhaps most conspicuous is the absence of any discussion about the whistleblower revelations from CSRT insiders—people hand-picked by the government, in other words, to participate in this process. One former CSRT administrator described a system in which “no exculpatory information” was ever presented (except accidentally when the government’s allegations were internally contradictory), where forceful pressure from senior command was brought to bear on CSRT panelists, and where overwhelmed legal officers raced through dozens of hearings in a tightly compressed time period. Another described the information gathered from recalcitrant (and sometimes nonresponsive) intelligence agencies as “lack[ing] even the most fundamental earmarks of objectively credible evidence.” And, while this occurred in reaction to a separate legal process, it can’t have escaped the Court’s attention that the former head prosecutor of the Military Commissions resigned his post in public protest against corrupting political influence on that process.

What is particularly surprising about the majority’s colorless approach is that many observers think it was precisely these revelations which led the Court to reverse its initial denial of certiorari in such stunning fashion. Yet they don’t appear even as a defensive riposte by the majority (the Court could have easily achieved much this purpose by acknowledging—without necessarily adopting—these criticisms of how the formal CSRT procedures were actually applied).

So what happened? I suspect three things may be going on. First, the Court is appropriately uneasy about undertaking what would amount to fact-finding on certiorari review. Resting its decision on anything other than the bare text of the CSRT procedures would have provoked a firestorm from the dissents. Second, the Court may have wanted to avoid miring future challenges in factual disputes about how a set of procedures are actually applied—even though such assessments are invited by the Court’s earlier Suspension Clause decisions in Hayman and Swain. Third, the majority may have worried that any extended riff on the full factual context might let opponents of Boumediene cabin the case as primarily focused on faithless application of a potentially valid set of rules.

It’s certainly frustrating from an advocate’s perspective to see Roberts’ credulous praise of the CSRTs go unchallenged in this way. But does all this render irrelevant the practical facts about how CSRT review actually operated? Well, it doesn’t take much of a legal realist to realize that this can’t be true. Kennedy may not have flagged any of these issues in his decision, but they had to have loomed large in driving the results of his flexible analytical structure. It’s the classic problem of conveying the rich fullness of your client’s situation, knowing that “atmospherics” and “optics” can often be outcome determinative. A former colleague liked to remind me that “we’re in the presentation business!” And that’s no less true when key pieces of the presentation don’t make it into the formal judicial outcome.

(2) Preventive Detention: Some commentators have been much too pessimistic about the prospects for statutory preventive detention in the wake of this decision. While there may well be other constitutional problems with such a regime, nothing in Boumediene prevents Congress from devising a comprehensive system of preventive detention—much as Congress devised a comprehensive system of criminal justice in the Military Commissions Act. Under the majority’s opinion, Congress can create procedures governing review; Congress can funnel the cases to a new court to conduct that review; Congress can define burdens of proof; and Congress can define the categories of people who are detainable. Indeed, I’ll argue in a later post that the majority essentially invites Congress to do so—albeit in a more thoughtful way than the 15 lines of statutory text which constitute the sum total of congressional participation on this question to date.

Will habeas corpus still be available for suspected terrorists to challenge the results of those preventive detention determinations? After Boumediene, the answer to that question is almost certainly “yes,” at least in areas where the writ runs. But—and here’s the key point—the question isn’t whether habeas is available at all, it’s what kind of review a habeas court will employ. The majority makes it clear that the scope of habeas review depends both on the detainee’s status and on the procedures that detainee has already received (or can expect to receive in relatively short order). See, e.g., Slip. Op. at 51, 52-53. This is at the heart of the mess that Roberts and Kennedy stumble into as they talk past one another in their discussion of direct vs. collateral review. Where the pre-habeas process is battlefield interrogation by U.S. soldiers, as the Solicitor General came close to suggesting in Hamdi, habeas courts will be searching and skeptical. Where the pre-habeas process offers a legitimate chance for innocent detainees to prove that innocence to an independent decisionmaker, the procedures and standards applied in habeas are likely to be far more deferential

Think of criminal habeas. The post-AEDPA habeas regime mandates heavy deference to state courts, not just on factual questions, but even on questions of pure law. It’s hard to imagine, simply as a predictive matter, that the Court wouldn’t extend even greater deference to a preventive detention regime in the national security context, so long as the basic pre-habeas process offers detainees a meaningful chance to contest their detention. (All of this, I should be clear, brackets the underlying substantive question of whether the Constitution would permit preventive detention as such.)

Is this small consolation for advocates of preventive detention? Well, that depends on your views of the constitutional baseline, because Boumediene certainly leaves no doubt that the grossly inadequate process of CSRT-DTA review can’t suffice to justify the continued detention of people who have been ghosted from the peaceful streets of Sarajevo into indefinite supermax detention in the Caribbean. But so many of the questions about how preventive detention would work involve balancing and calibration that the Court is likely to respect serious congressional engagement with these hard issues—so long as the final product incorporates genuine respect for the broad procedural requirements described by yesterday’s opinion. This all connects to another crucial aspect of Boumediene: its implicit position on how deference to the political branches should operate. I’ll come back to that in a later post.

http://opiniojuris.org/2008/06/13/what-comes-next/

3 Responses

  1. I think you’ve answered your own question regarding the CSRTs, both in regard to them being absent from the judgement, whilst being obviously determinative. It’s no doubt fair to say the majority accepted and was deeply moved by the fact that the CSRT-DTA process was stunningly structurally deficient.

    Also, yes, I found Roberts CJ’s judgement to be intellectually dishonest, especially regarding his comments to exhaustion and standards of CSRTs – which are objectively nothing like the best practice he pretends. Also, can I just say, from an outsider’s perspective, which is more limited to a more collegiate and less politicised expression of the judicial craft, I’ve got to say I found it rather crass to see such a blatant example of signalling and pandering in the dissent of a Chief Justice on a superior court. I mean, talking about “unelected judges” usurping the Executive’s glorious war on terror, as if he was a Fox News pundit, and held his own profession in contempt. It looked exactly what it was – a bit of red meat for the base, which dressed up objections he was entirely capable of making without it being a circus trying to bring the Court and the majority into disrepute.

    Maybe I’m just showing my lack of familiarity with US caselaw, but is that the norm for your conservatives? I guess CLS had to come from someone. I guess it makes sense if that is considered normal carrying on

  2. I appreciate your focus on preventive detention in your post as I fully expect that to be the pre-election battle. I have noted that McCain is revving up the red meat attack in his criticism of the decision. He echoes Bush exactly in his statements. So we can expect this will be a line of attack in the campaign on the Democratic Congress and Obama. An effort to pass a national security court type law with a preventive detention aspect for “foreigners-only” seems a very likely thing to see at the end of the summer in the pre-election hothouse. The effort will attempt to put the fear of Osama in everyone.

    Best,

    Ben

  3. Well I think you’re right: they want the lower courts to work out the factual stuff, simply for institutional reasons: that’s what the lower courts are for, and the petitions they decided were appeals of decisions on the merits below.

    As for McCain, he’s vulneerable on this stuff and should be attacked head-on. The man is aiding and abetting war crimes.

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