Deborah Pearlstein and Michael Newton wonder what’s left of judicial deference in the wake of Boumediene. It’s a good question: certainly if you listen to the Boumediene dissenters, the answer is “not much.” Chief Justice Roberts rails against “unelected, politically unaccountable judges” and “the rule of lawyers” in concluding that “this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants,” Slip Op. 2, 28 (Roberts, C.J., dissenting). And Justice Scalia is quick to echo his colleague, suggesting that the majority has “blunder[ed] in” behind a posture of “faux deference” to hide its “inflated notion of judicial supremacy.” Slip Op. 5 n.1, 6, 17.

In one sense the dissenters’ rhetoric is fairly standard stuff, albeit unbecomingly vitriolic. But there’s an issue here that goes beyond mere rhetoric: I think in this case the dissenters may actually misunderstand the majority’s conception of how deference ought to work. It’s true that the Court is unwilling to defer to the political branches’ categorical elimination of a fundamental liberty right, particularly one which it describes, as Ted White points out, as the only procedural right incorporated in the original Constitution. It is also true that the Court is unwilling to defer on which large categories of procedural rights should be included in “the sum total of procedural protections at all stages, direct and collateral” afforded to accused enemy combatants. Slip. Op. 54. The Court instead insists on setting the essential terms of review itself, guaranteeing meaningful opportunities for petitioners to assess and challenge the government’s evidence; to present exculpatory evidence; to proceed adversarially rather than inquisitorially; to receive speedy review; to mount a legal challenge to the Executive’s power to detain; to obtain an order of unconditional release; and above all else, to avoid indefinite detention on the basis of a process that threatens a considerable risk of error. See generally Slip Op. 59-63.

The Court decided that the CSRT and DTA weren’t intended to offer any of this, notwithstanding Justice Roberts’ description of them as a “good faith” effort to implement Hamdi. (I don’t want to beat the drum on this point any more than I did in my last post, but the Court is absolutely right, and Justice Roberts absolutely wrong. See pp. 3-6 and 26-33 here for a highly condensed summary of why that’s the case.) And so the Court found the MCA unconstitutional.

But it seems clear to me from the tone and approach of the Boumediene majority that a serious and systematic effort to lay down rules—certainly procedural, and perhaps to some extent even substantive—governing preventive detention is likely to be respected by this Court. In its concluding paragraphs, the majority underscores that “[t]he political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Slip Op. 69. Earlier in the opinion, the majority emphasized that “proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time.” Slip Op. 65. Given that the Court has just overruled Congress’ first venture into this area, how precisely will this deference be realized? The opinion makes it clear: through the inverse relationship between the scope of habeas review and the procedural rigor of any prior proceedings, a phenomenon that plays a crucial role in the majority’s adequacy analysis. See Slip Op. 52 (“The necessary scope of habeas review in part depends upon the rigor of any earlier proceedings.”); id. at 57 (“habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here”).

(It should be noted that all this deference language may have one caveat. The majority pays notable attention to the savings clauses in both Swain and Hayman, which provided that “a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective.” Slip Op. at 48. Congress might thus be well advised to provide for some flexibility in instances where law and equity require—the majority emphasizes, after all, that “common-law habeas corpus was, above all, an adaptable remedy. Slip Op. at 50. But such a clause seems unlikely to have much practical significance. The relatively rare success of original writs after AEDPA suggests that courts are unlikely to use escape clauses or flexible language to run roughshod over a carefully calibrated congressional scheme.)

So, returning to Michael’s important questions about the application of CIPA, the introduction of hearsay, the production of witnesses, interaction with counsel, and so forth, my own strong sense is that the court would love to defer to a reasonable resolution of these issues—specifying the particular mechanisms and legal tests by which the Court’s high-level procedural commandments will be implemented—so long as it is clearly the result of a process aimed at protecting the basic right of a detainee to demonstrate his innocence. And I frankly suspect that such deference is likely even on the question of the substantive authorization to detain, so long as the definitions of detainable persons are sufficiently nuanced—for example, varying in some systematic way, perhaps based on time of detention and the threat that is allegedly presented by the detainee (two factors that are mentioned in the Boumediene majority).

If this is right, then Congress has a choice. It can let the Article III courts work out the crucial questions of our legal structure for counterterrorism, including both the substantive categories of people the President is authorized to detain, and the procedures to determine whether a given petitioner falls in a detainable category. Or Congress can take on those tasks itself. In assessing this choice, Marty Lederman argues quite plausibly that there is no rush to institute a new preventive detention statute, particularly given the unhealthy political climate of election season. But on the broader question of whether Congress should be involved at all, I tend to sympathize with Ben Wittes’ desire for active participation by the most democratic branch of government, largely because the “paradigm problem” outlined here by Geoffrey Corn and David Scheffer fairly demands democratic participation in its solution.

But whatever the wisest course may be, my point is simply that the Court seems likely to defer to reasonable congressional implementation of the broad directives outlined in Boumediene. What are reasonable procedures? How long is a reasonable period of time? So long as Congress appears to have taken the core requirements seriously—so long as it can plausibly claim that it sought to “provide defendants with a fair, adversary proceeding”—the Boumediene majority suggests that congressional determinations about the details of procedure will receive significant deference.

One quick note about Justice Scalia’s accusation that the majority has extended an act of grace to our “enemies” (Slip Op. 1) (Scalia, J., dissenting). This is simply dishonest. Scalia’s formulation assumes, even if only rhetorically and morally, the conclusion of this entire controversy. The ultimate substantive question here, as Steve Vladeck has well articulated elsewhere, is whether these detainees are in fact “our enemies.” It is simply non-sensical to hinge the availability of an innocence-proving mechanism on whether the person seeking to use that mechanism is innocent. Scalia’s prominent and repeated formulation was not a responsible presentation of this case to the country at large.

With that, my time here is up. I’ll leave the last word on what Eric Freedman rightly describes as a momentous case to one of the Court’s most understated members, who offers a typically commonsensical summary: “today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.” Slip op. 3 (Souter, J., concurring). The time for perseverance is not yet over.

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.