Speaking of Detention

Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “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.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go.

I can hear two related complaints coming in response: (1) these rules still are just not specific/detailed enough, and (2) these rules weren’t written with the Guantanamo detainees in mind – those guys are really scary, the facts are really complicated, really murky, the information is classified, etc. etc. And fair enough: these rules are fairly broad (though perhaps less than most imagine given their elaboration in case law), and I suspect not written in contemplation of the exceptionally appalling circumstances we find ourselves in at Gitmo today.

Here’s why I think these still point to the courts next given where we find ourselves today. First, these rules are broadly written for a reason: because as Ben’s chapter on Guantanamo so usefully illustrates, cases are different. Not much serious factual dispute in some cases; very serious disputes (and not all the facts present) in others. Standard discovery processes (interrogatories, depositions, etc.) may work well and easily in some cases. Modifications may be necessary in others. When it comes to the messiness of individual disputes, the courts can sometimes very helpfully operate at a level of granularity (and, dare I use the word, flexibility) that a legislature just can’t.

Now what about general problems related to Guantanamo cases across the board? The handling of classified evidence, for example. Might it be useful if Congress had something more specific to say about this? Perhaps. (Though of course Congress doesn’t always get it right, and I daresay usually doesn’t get it right in the last months before a presidential election.) Far more to the point – and here’s where I part company I think with Bobby – time matters. To paraphrase Boumediene’s mantra: It’s been six years. Especially for whatever fraction of remaining detainees held who shouldn’t be there at all, can you imagine how excruciating time must be? Can you imagine how you would feel? The courts have been a critical driver of the resolution of these cases from the beginning, whether by actual order or by powerful incentive. They are driving the process still. And I believe they can drive it faster than Congress at this late date. For that matter, given their experience in such matters of evidence and law, I actually might be persuaded to say: they can drive it better.

A final point for now. I can imagine one’s calculation about the need for legislation would be different if one thought we were talking about more than Guantanamo here – if we were talking about, say, a new architecture of detention for terrorism detention writ large. But as Ben and I have discussed elsewhere, I think it a fatal mistake to conflate the two very different challenges of what to do about the special mess that is Guantanamo, and what kind of detention policy the United States wants in the interest of counterterrorism going forward. If you like, Ben, happy to revisit that discussion too in a later post.