[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.]

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.”

But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.
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Just two days ago, in his dissent in Douglas v. Independent Living Center of Southern California, Chief Justice Roberts argued that Medicaid beneficiaries should not be able to pursue injunctive relief under the Supremacy Clause against California state officials alleged to have violated the substantive provisions of the federal Medicaid statute, given that the federal law neither (1) provides a direct cause of action; nor (2) can be indirectly enforced via 42 U.S.C. § 1983. In his words,

to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

Although the Chief lost the battle on a technicality in Douglas, it seems safe to say that he’s winning the war. Alexander v. Sandoval made it far more difficult for courts to infer direct causes of action into federal statutes that fail expressly to so provide; Gonzaga University v. Doe (which the Chief himself argued back in his private practice days) made it far more difficult for litigants to indirectly enforce federal statutes against state officers via 42 U.S.C. § 1983 in cases in which the underlying statute wasn’t itself clearly meant to be privately enforced; and the Court’s comparable scaling back of implied constitutional remedies against federal officers under Bivens is no less well-entrenched.

I open with this point because, the more I read International Law at Home: Enforcing Treaties in U.S. Courts, the more convinced I become that we might draw fairly comprehensive (and perhaps alarming) parallels between the Supreme Court’s evolving approach to domestic enforcement of treaty obligations and its contemporary take on the availability of private enforcement of implied federal rights in the cases noted above. After all, I don’t think it’s that much of a stretch to see Medellín’s rather stilted approach to direct enforcement of treaties in largely the same light as the Court’s approach to private enforcement of federal statutory rights in Sandoval. And as with the historical pedigree of treaty enforcement carefully traced by Hathaway, McElroy, and Solow, it wasn’t until fairly recently (the 1970s) that the Supreme Court began to assert more systematic objections to inferred federal remedies.

I must confess that I’ve been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben’s point in his most recent post — that detention should be based upon “dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force” seems reasonable on the surface, but assumes away the problem that cases like Parhat illustrate, i.e., the demonstration of “some significant relationship.” Is it true that anyone with such a relationship is presumptively dangerous, and thereby detainable under Ben’s framework? Or is there a second showing — first that there is a relationship, and second that within the contours of that relationship, the particular detainee is particularly dangerous? If Ben means the second, then I’m far less troubled (although not completely satisfied, for some of the reasons articulated by Deborah and Marty). But if Ben means the first, then we’re right back where we started, no?

We’re supposed to start winding down this conversation, so rather than dwell on this point, I want to briefly segue to a larger question that has plagued me from the beginning of this debate: are we to judge proposals like those in Ben’s book in a vacuum? Or, in contrast, should we see these proposals through the lens of the many egregious missteps the Bush Administration has taken in its conduct of the fight against terrorism over the past seven years?

I suspect that, thanks to Roger’s framing and Marty’s and Deborah’s thoughtful opening salvos, we’re not too far from getting to the two big questions with regard to Ben’s proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to go first.

In the interim, I wanted to just flag a pair of curious historical footnotes, both of which tend to get overlooked in these conversations (perhaps for good reasons). We actually have two pretty interesting exemplars of preventive detention legislation, and I wonder if both provide useful lenses through which to view Ben’s proposal…

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…

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…

It didn’t take long for the media and the commentators to quickly seize on the real question after Boumediene: now what? Let me begin by suggesting there are at least four categories (and probably more) of cases in which we must separately assess Boumediene’s implications:

1. Non-citizens detained at Guantánamo challenging their detention.
2. Non-citizens detained at Guantánamo challenging their pending trial by military commission.
3. Non-citizens detained elsewhere outside the United States.
4. Non-citizens detained in the United States (i.e., al Marri)

Although there is a whole lot to be said about each of these categories, I want to begin with (2), because in a way, that’s the simplest.

Before September 11, it was well established that habeas corpus was an appropriate means through which to mount a collateral attack on the exercise of military jurisdiction. At various points, especially during the 1950s and 1960s, the Supreme Court struggled over whether other challenges to military trials could be litigated via habeas, but jurisdictional challenges were just about always allowed.

Hamdan, of course, reaffirms that idea, especially in one of the more overlooked parts of Justice Stevens’s opinion for the Court–Part III, where he rejected the idea that the courts should abstain from deciding Hamdan’s habeas petition until the military commission proceedings had been complete. Simple enough to express, the idea is that a jurisdictional defect implicates the defendant’s right not to be tried in the first place, and not just the rights that would attach to such a trial. (Double jeopardy case law is somewhat analogous).

Anyway, I suspect the upside of all of this is that habeas petitions mounting collateral attacks on the jurisdiction of the military commissions under the Military Commissions Act of 2006 (“MCA”) can now go forward, and Hamdan itself probably will prevent the habeas courts from staying their hand. The question then becomes whether the military commissions will wait for the habeas proceedings to run their course, or whether the habeas courts won’t even give them that chance, and will order them to hold off…

But whatever the procedural posture, I wonder if the end result is to actually accelerate the resolution of fundamental questions concerning the constitutionality of the substantive provisions of the MCA? For example, if someone like Omar Khadr challenges his military commission on the ground that, inter alia, he’s entitled to combatant immunity, it strikes me that such a claim could get resolved much more quickly now than if he had to raise it as a defense at trial, raise it in a post-conviction appeal to the “Court of Military Commission Review,” and then raise it in a subsequent appeal to the D.C. Circuit.

Ultimately, then, I think today’s decision ensures that the one set of questions that can now be answered perhaps the most expeditiously are the substantive questions concerning the MCA. And hidden within some of those questions are perhaps the most “meta” questions at stake in these cases — the substantive detention criteria, the scope of the conflict, and, oh by the way, the applicability and enforceability of international humanitarian and human rights law…. so things may not take quite as long to drag out as we might think, it just might be the military commission cases, and not the challenges to detention without trial, that provide the vehicle.

First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on what, for me, was the most fascinating part of Justice Kennedy’s majority opinion—his excursus on the purpose of the writ of habeas corpus.

Consider the following passage, found at pages 55–57 of the slip copy:

Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. . . .

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. [alterations in original]

In other words, the constitutional sufficiency of the CSRT procedures is only one small piece of the puzzle. The fact that there is a substantial likelihood of incorrect results, and that such results would cause immeasurable harm, is itself a reason to conclude that the DTA review process is an inadequate substitute for habeas. This may seem like doublespeak, because how can the process be truly constitutionally “adequate” if there is such a high probability of inaccuracy. Chief Justice Roberts certainly seems to think this is nuts in his dissent. But I think Kennedy is saying something else here—that accuracy is the desired end, and procedural sufficiency is but a means thereto.

If so, then such analysis would constitute a potentially sweeping retreat from one of the hallmarks of the Rehnquist Court’s habeas corpus jurisprudence (and the scholarship of the legendary Paul Bator): the idea that habeas corpus is not about error correction; that the “Great Writ” is meant to ensure fair proceedings, but not necessarily accurate proceedings. (For one troubling example of such a case, see Herrera v. Collins).

Kennedy is careful, of course, to note that this discussion is limited to the context of habeas petitions challenging detention by executive order, and not other forms of habeas review where there is less reason for skepticism. As he says on pg. 57, “Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here.” But I wonder if that’s not closing the barn door after the furry little things have already left, for it begs the question whether the “underlying detention proceedings” are “thorough,” and it suggests that habeas review is far broader whenever there are reasons to think that such proceedings are not.

The idea that habeas actually should be about error correction (or, at least, should also be about error correction) when there are reasons not to trust the underlying detention proceeding is reminiscent of the heyday of the Warren Court’s habeas jurisprudence. I’m just surprised to see it re-emerge here, and so prominently, at that…

I hope to have some more later on the relationship between Boumediene and the equally significant decision today in Munaf, but thought I’d pause here, for now.

First, my thanks to Kevin, Peggy, and the OJ crew for a chance to post my own initial reaction to Medellín.

Leaving the international law to the international law scholars, and the Court’s odd parsing of the VCCR’s ratification history to those who are more familiar with it, my own interest in the Chief Justice’s majority opinion in Medellín is in his rather bold attempt to clear up decades of uncertainty over just what, for constitutional purposes, a “non-self-executing treaty” actually is. (I assume, for the sake of argument, that the VCCR’s optional protocol is one such treaty.) Footnote 2 of the majority opinion provides the Court’s new definition:

What we mean by “self-executing” is that the treaty has automatic domestic effect upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.

Whereas forests have been felled on the question of whether a non-self-executing treaty merely fails to provide a cause of action, or also fails to provide judicially enforceable rights, I take footnote 2 as resolving that longstanding debate—and doing so in favor of the latter, broader, view. Indeed, in the paragraph leading up to footnote 2, the point is made even more explicitly—that non-self-executing treaties “do not by themselves function as binding federal law.”

If so, this is an extremely important development, and one that seems thoroughly at odds with the plain text of the Supremacy Clause (to wit, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .”). Is the Chief Justice’s view really that non-self-executing treaties are not “treaties” under the Supremacy Clause? If so, then Medellín overrules a litany of earlier cases that declined to draw such a distinction for purposes of the Supremacy Clause, and sub silentio at that…

I had always thought the more compelling argument was that non-self-executing treaties don’t create private rights of action. On that view, they still create positive law, per the Supremacy Clause, but law that could only be privately enforced through otherwise available causes of action.

Where this distinction would make an enormous difference is where a statute provides a cause of action for the enforcement of “treaties,” without specifying whether the treaty must be self-executing or not. An obvious example, of course, is the federal habeas statute, which provides both jurisdiction and a cause of action for claims by a detainee that “he is in custody in violation of the Constitution or laws or treaties of the United States.” (emphasis added).

I’ve argued previously that non-self-executing treaties should nevertheless be enforceable under the habeas statute, given that the Habeas Corpus Act of 1867 deliberately modeled this provision on the Supremacy Clause, and given that non-self-executing treaties, in my view, are still “treaties” under that constitutional provision.

I’m perfectly happy to accept that I might be wrong; it would hardly be the first time. But would it have been so hard for the Medellín majority to provide more than a cursory explanation for why? Given the significance of the implicit suggestion here–that non-self-executing treaties simply aren’t “treaties” under the Supremacy Clause–at least some analysis might have been helpful…