Should Judges or Congress Elaborate the Procedural Details of Habeas Review?

I want to explore Ben’s point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance.

There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene.  As I discuss here, the government and the detainees recently filed briefs addressing a preliminary set of five such issues, including discovery, hearsay, confrontation, burdens of proof, and triggers for evidentiary hearings.

Judicial resolution of such questions may well result in a reasonable and well-designed detention review framework.  Or it might not.  Experience with the resulting system will tell us for sure, but that brings us to a reason one might prefer to have the legislature craft these rules in the first instance, rather than judges: it may be that we will wish to revisit these issues in light of experience, and that will be far easier to do if they are statutory rather than the result of a judicial opinion that purports to derive them from the Due Process Clause or from the constitutionally-protected aspect of habeas itself–especially if the statutory approach includes a sunset that compels Congress to revisit the issue after a certain period.

One objection to this approach is that it will simply delays things, without possibly producing a different set of rules in the end.  Courts will review any such statute, after all, and thus they will have the final say even if Congress steps in first.

I don’t find the delay component of this objection troubling since Congress can (and should) build fast track review into the statute, and because the status quo in any event almost certainly is going to involve long, drawn out litigation.  The more difficult question, I think, is whether the end product of the statutory approach (i.e., what remains after judicial review) possibly could be different from what will occur now with courts in the lead.  If not, then there really isn’t much point in insisting upon Congress getting involved.

It seems to me that there very likely could be a difference.  In the absence of legislative guidance, Judges Hogan and Leon (and the courts that will review their decisions) will make choices that certainly will be meant to fall within the scope of what would be constitutional (in light of Boumediene), but that will not necessarily reflect the outer boundaries of what would be constitutional. That is not to suggest that the correct answer to each of the procedural questions is to push the boundaries of constitutionality, but rather to point out that there may be a range of lawful solutions to each question, and the judges’ choices will not exhaust that range (I wonder if this is what Marty had in mind when he wrote the other day that courts should be given the “chance to handle the problem deliberately and comprehensively, after which Congress can decide whether it is necessary to supplement the judiciary on any outstanding, vexing questions.“).  If that is correct, then it does seem that there is room for policy discretion within the bounds of the constitutional.  And if there is such room, isn’t it better for Congress to exercise that discretion in the first instance, subject to judicial policing against choices that go beyond the permissible range?

For those who wish to see an end to military detention altogether, of course, a new detention statute of any kind no doubt sounds like a terrible idea.  Fair enough; from that perspective there is no point debating which branch should take the lead in improving upon the status quo.  More on that tomorrow…