Responding to Steve and Deborah

Let me first address Steve’s point about incrementalism, then Deborah’s and Steve’s tag-team argument that my distinction between statutory review mechanisms and open-ended habeas review is a false one. (I’ll address Marty’s, Geoffrey’s and Bobby’s posts in separate posts this evening.)

On incrementalism, I largely agree with Steve’s characterization of the court’s approach as incremental, and I don’t disagree either that it is a speculative claim on my part that the court’s intervention may carry significant costs. I acknowledge this point, I hope candidly, in the book (see pp. 122-123). That said, incrementalism is only a partial defense if you believe the court’s direction is wrong–ie, heading in the wrong direction slowly is, to be sure, better than heading in the wrong direction quickly, but it’s still the wrong direction. That, of course, raises the question of whether I’m right that the court’s actions are likely to have serious costs.

This brings me to the difference between the type of review I favor and the type that makes me uneasy. Deborah asks what the difference is between the now defuct DTA review and review under the habeas statute as construed by the courts for 200 years. She should be careful what she wishes for. Those years of interpretation, after all, included Eisentrager–a decision that shielded many wartime detentions from habeas rules that developed with other situations, evidence, and fact-patterns in mind. Once the court decided to overrule Eisentrager (without saying so, of course), it opened a world of questions. Many of these questions were far less open under the DTA. What legal standards apply to detentions? Who bears what burdens of proof and persuasion? What is the record under review? What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all. Indeed, I’d be curious if any of the distinguished scholars in this group can name me a single significant rule or standard, procedural or susbtantive, that is clearly dictated by 200 years of habeas jurisprudence as applied to the Guantanamo cases. Even the most traditional rule of all–“Bring Forth the Body”–is up for grabs. And the result will be that judges make it all up as they go along. I’m not comfortable with that–because I don’t have indellible faith in the wisdom of judges, because I believe the executive branch ought to know in advance whether its conduct is legal and not have to guess (especially when it relates to combat operations or national security decision-making under pressure), and because I believe that we should debate these questions up front and form reasonable judgments of what kind of rules should govern detentions.

There is, in other words, a world of difference between a statutory scheme (even a primitive one) that lays out the rules of detentions and a general mandate to decide whether a detention–any detention, for any purpose–is lawful. There would, of course, be a bigger difference still if the detention statute in question were a sound one and the record generated under it were lucid and serious.