Back to Ben on the Courts

Thanks for the detailed reply, Ben – already enjoying this discussion. I’ll leave it to Marty and his own considerable blogging skills to discuss his views about the role of Congress. Let me get back to you for now about the courts.

You write that you are “deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role.” So judges deciding cases based on the review scheme set forth in the brand new DTA (and MCA) statute is good. Judges deciding cases based on the review scheme set forth in the age-old habeas statute and as elaborated over centuries of common law practice is deeply disquieting? I think I need to understand in more detail here why you think there’s an important structural difference as between these options.

The scope of review in each scheme is different, to be sure, but one is not qualitatively much clearer than the other. The federal habeas statute gives federal courts the power to extend the writ where a detainee is in custody “in violation of the Constitution or laws or treaties of the United States.” The DTA gave the D.C. Circuit Court of Appeals the power to extend the writ if it concluded the procedures and standards under which he was being held were not “consistent with the Constitution and laws of the United States,” to the extent the court concluded those laws applied. Either way, it’s pretty much some court deciding whether the detention is lawful or not.

Too, as the Supreme Court spent some time discussing in Boumediene, there are also important questions of how much and what kind of evidence may be considered. The DTA/CSRT scheme seemed to have some pretty significant limits on what kind of evidence a court could see – standards when last we looked the D.C. Circuit was struggling to interpret/apply. The Supreme Court found it “constitutionally required,” consistent with its prior holdings on habeas, that federal habeas petitioners here have the opportunity to supplement the factual record on review. Either way, as we’ve already seen, there are going to be case-by-case calls on what evidence comes in and what stays out. And that will have to happen in a court.

Are there some other elements of system design you’d point to? Is it that you think the DTA provides in some key respect more specific guidance than the old habeas statute, federal rules of procedure, and case law that’s grown up elaborating them? Or is your central concern the prospect of courts applying the common law more generally?

In the meantime, you and I may have to agree to disagree about whether “we” (I assume you mean society?) are more likely to tolerate “exceptions and hypocrisy in warfare” than in other areas of constitutional law – for entire theses can and have been written on just such meaty topics. Hope to pick up on your points about the strategic costs/benefits of judicial engagement later.