More on the Role of the Courts in the “Long War”

As usual, I agree with much of what Marty says, especially Marty’s suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we’ve been (query whether the same might also be said about Jane Mayer’s new book, but more on that later). Marty is also right, I think, to call Ben’s critique of the role of the judiciary “odd,” for reasons that he (and Deborah) articulate in some detail, and which I won’t repeat here. But I think both Marty’s and Deborah’s posts skip slightly over a point that I think bears emphasizing: the role of the courts has, in my view, been incremental — sort of an attempt at a public conversation with the political branches. So it’s not just that we’d be infinitely worse off without these decisions (as Marty suggests), or that the courts (and the Supreme Court in particular) have basically gotten it right (as Deborah suggests). Rather, it’s that the courts did exactly what we should want them to do during crisis times — speak very softly at first, but raise the volume and sharpen the tone (a) as time goes on; and (b) as the earlier decisions are ignored / side-stepped / mis-appreciated.

So, it starts with Hamdi, where the Court says that an affidavit with no chance for meaningful rebuttal is not enough process. The Court goes out of its way to not say what would be constitutionally sufficient process, leaving that, as O’Connor said expressly, for the lower courts to sort out. The same day, in Rasul, the Court says that the habeas statute extends to Guantanamo, and with the exception of a tantalizing footnote, says absolutely nothing about the merits. In both cases, the message is subtle but clear: more process is necessary, and the courts will play a role, but the rest is to be dealt with later.

One can view Hamdan through a similar lens. As Ben himself notes, most of the holdings in Hamdan were “statutory,” but two key principles emerge from the decision: (1) the President can’t simply ignore limitations in congressional statutes (see footnote 23); and (2) Common Article 3 applies to the conflict with al Qaeda. Again, speaking relatively softly, and leaving room for the political branches to respond. I think the vast bulk of the Military Commissions Act is exactly what Kennedy and Breyer had in mind when they emphasized that the President could go to Congress; it was the preclusion of judicial review, especially habeas corpus, that crossed the line, as Boumediene makes clear. One can even find messages in other opinions not on the merits, including the joint opinion concurring in the denial of certiiorari in Padilla II (which Chief Justice Roberts joined), and the Kennedy/Stevens opinion concurring in the denial of certiorari in Boumediene (before the Court reversed course). The Court was trying to send a message to the political branches, but the political branches just weren’t listening — hence the need for stronger steps.

The incrementalism in the decisions — from Hamdi and Rasul to Hamdan to Boumediene — strikes me as a model for courts during crisis times, and not a reason to conclude, as Ben does in his book and in his opening post, that the Courts have “been playing a very dangerous game–one that has actually contributed relatively little clarity to the discussion yet has threatened an enormous and unwarranted expansion of judicial power in foreign and military affairs.” Unlike the rest of Ben’s careful, meticulous, and thoughtful book, there is nothing more than unsubstantiated speculation to support this conclusion, and as Marty and Deborah rightly point out, there is every reason to think that we are the better off for what the courts have done to date — indeed, that they perhaps could have, and should have, done even more. I, for one, don’t think it’s enough to make this Congress’s problem. Someone still has to be looking over Congress’s shoulder. But more on that later in the week…