The Role of the Courts

Deborah’s and Marty’s challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I’m going to boil their points down to five broad arguments. I’m not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I’m happy to swing back and respond further or in more detail to more granular points if they–or others–want. Before I begin, however, I want to thank Marty and everyone else for the very generous words about the book, which I appreciate deeply:

First, Deborah complains that there’s less of a gulf than one would think between my criticisms of the role the courts have played and the role that I advocate their playing. I think this is wrong. To be clear, I advocate an extensive role for judges in the adjudication of contested detention issues, yet I am deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role. In other words, I am altogether comfortable with the role the D.C. Circuit played in Parhat–though that decision will cause a world of hurt for military detention efforts–and I am 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.

Second, Deborah accuses me of setting up straw men in my arguments, for example, in my contention that many commentators and human rights activists are deeply anxious about a broader congressional role in the design of the system: If the “book’s primary point is this structural one [that Congress needs to be more deeply involved]–no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree.”

I can. Consider Marty’s post, a scant few hours after Deborah’s: While he describes me as correct that some statutory amendments would be worthwhile, here’s his general take: “When I read the granular details that Ben so comprehensively canvasses, I come away with the general impression that our legal framework for dealing with the al Qaeda threat is substantially adequate to the task — a rich mixture of tools from the criminal law, armed conflict, intelligence gathering, and more.” Then there’s Kevin, who yesterday described himself as “more than happy to have ‘interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,’ if by the tendentious expression ‘at the highest altitude’ we mean ‘consistent with the Torture Convention.'” I can’t tell you how many times I’ve been accosted by people anxious about congressional involvement in these areas; if Congress does get involved, after all, it will make the law worse–whereas the courts will eventually fix things. One coalition of human rights and civil liberties groups went so far as to oppose Sen. Carl Levin’s efforts last year to improve the CSRTs, on grounds that creating a real system might undermine the case for habeas. My argument is not simply that Congress “has a role to play.” It is that its role is to design the system under which we will conduct the conflict–a system that is now tragically underdeveloped and risks misdevelopment in the common-law dialogue between the executive and judicial branches that is now serving as the chief vehicle for its design.

Third, this brings me to Marty’s argument that the true importance of 90 percent of my book is that it disproves the remaining 10 percent. If that is indeed the book’s impact on the average intelligence reader, then notwithstanding Marty’s praise, I have failed utterly. The 10 percent of the book that Marty criticizes is not, as he suggests in a good-natured attempt to defend me from my own work, the predations of a publisher keen to sell more books. It is, rather, the core of the book, from which the rest sprung. The book began with an essay in Policy Review a year ago dealing with judicial review and the war on terror–precisely the section of the book that Marty and Deborah now regard as most problematic. The effort to flesh out that essay led me to the 90 percent of the book Marty regards as essential. If my readers conclude that the proper answer to this set of problems is more litigation with occasional tidbits of legislation around the edges, they will not have rejected the outer edges of the work but its nucleus. 

Fourth, I agree with Deborah that some of the problems with judicializing warfare apply to some extent in other areas of law as well. It’s a question of degree, and while I am not against the legalization of warfare, degree does matter. We have a greater tolerance for exceptions and hypocrisy in warfare than we do when thinking about “due process”–to borrow her example. And the more tolerance we have for hypocrisy and exception, the more difficult it becomes to rule on the basis of principle, the thing we want our judges to do. I do not contend that this means that judges have no role in the process, just that we need to consider the contours of that role in light of this reality and that there is a legitimate place because of that reality for judicial abstention in certain areas.

Finally, a brief word in response to Marty’s question: Where would we be had the courts not intervened in Gitmo? At least in the short term, we’d be in a worse place. I have no doubt that litigation pressures have pushed the administration to think hard about the review structures in place and have led to improvements. I have no doubt, in short, that the practical consequences of judicial review have been generally salutary so far; indeed, I say as much in the book. But it’s important to include in this discussion the costs of an aggressive judicial posture in these matters–the costs to democratic accountability for fateful decisions of risk allocation, the costs to military effectiveness, and the costs to long-term policy-making flexibility. I think we have tended to give these costs short-shrift in our enthusiasm for near-term practical gains. And while those costs are difficult to calculate at this stage, I also think the gains have been at least somewhat overstated. The population of Gitmo was declining even before Rasul, and the political pressures that led to its precipitous decline would have been present even without the courts.

I’ll stop there for now.