The Purpose of Habeas Corpus

Piggybacking (again) on Deborah’s response to Ben’s response to… (you get the idea): It strikes me that we’re having a debate over the proper role of the courts at a level of abstraction that is largely unhelpful. Ben says that he is okay with the role played by the D.C. Circuit in Parhat, for example, but that he is “uncomfortable with the open-ended role for the courts that will follow Boumediene. My acid test is whether we’re designing the system through litigation or whether we’re implementing a system with that litigation.”

I guess I just don’t see what is so open-ended, and perhaps clarification from Ben would help. The central inquiry in a habeas petition is whether the petitioner’s detention is unlawful. That’s it. Congress will of course have a lot to say in specifying whether or not the petitioner’s detention is authorized by statute, but it is then up to the courts, as it always has been, to decide (1) whether this particular petitioner falls within the substantive scope of the detention authority Congress has authorized, and (2) whether there are any constitutional problems either with the substantive scope of that authority, or with the process employed by the government in deciding that the petitioner falls within that scope. The answer in the vast majority of cases may well be “no,” especially if Congress does more than it has previously done to define the substantive detention criteria with any modicum of precision. But whether Congress so acts or not, I still don’t see how such review “threaten[s] an enormous and unwarranted expansion of judicial power in foreign and military affairs.” Indeed, there is an inverse relationship here between how active the courts will need to be and how specific Congress is. That doesn’t just strike me as the hand we’ve been dealt; that strikes me as the right way to run this railroad…