Greetings everyone. Sorry to be late.
I agree with Walter that the number of 5-4 votes on the court this year probably doesn't indicate a trend toward a new moderate center. Seven hotly contested cases (that is why they are last) have not yet been announced. If most of these traditionally splintered late decisions are 5-4, the court won't be far from its average of 5-4 votes for the last 10 years (22 percent). (The outlier was last term, when more than one-third of the decisions were decided by 5-4.) But even if there is more consensus this term, I am skeptical of Cliff's suggestion that the reason is that the court is approaching cases legally rather than politically. Why would the court be political in the last few years but care more about law this year? The appearance of consensus and surprising votes is likely—as Walter suggests—a function of the accidental lineup of cases.
And now to the enigmatic Boumedienedecision, which gave Gitmo detainees a constitutional right to challenge the legality of their detention in federal court. Here is one indication of the decision's oddness: Chief Justice Roberts' dissent, which Justice Scalia joins, disparages the decision's "modest practical results" and notes that it provides a hollow victory to the detainees, and Justice Scalia's dissent, which Chief Justice Roberts joins, predicts the decision will result in the release of dangerous terrorists and "almost certainly cause more Americans to be killed." Either could be right.
On my own first reading of the case, I was drawn to Justice Scalia's view. The majority opinion by Justice Kennedy (for whom I clerked in the 1990 term) is extraordinary in its claims of judicial power during war. The court for the first time confers constitutional habeas corpus rights on alleged enemy prisoners captured and detained outside the United States during war. These rights are much more generous than anything contemplated by the international laws of war. More amazingly, for the first time during a war, the court invalidated a military measure—a statute that stripped habeas corpus in lieu of detention review by a military tribunal and the D.C. Circuit—that had the support of both Congress and the president. The decision only extends judicial review of military detentions to Gitmo, but the court hints that its writ might go wherever the military goes, depending on the circumstances. And the court suggests that alleged terrorists may get unprecedented access to lawyers, witnesses, and classified information and adds that "more may be required."
Read for all it says and implies, this decision could place an extraordinary burden on the commander in chief and our soldiers. It might require release of detainees at Gitmo for whom the military lacks the quality and quantity of evidence that a new and more demanding standard requires. We are not facing up to the implications of this possibility if we assume, as Dahlia did last week, that the remaining prisoners at Gitmo are not terribly dangerous. The government made mistakes in its Gitmo detentions during the last seven years and has released many less dangerous or innocent prisoners. But the most careful study of the Gitmo population—Chapter 3 in Ben Wittes' great new book, Law and the Long War—concludes that a substantial number of the remaining prisoners are committed and very dangerous terrorist threats to the United States. (Wittes has estimated elsewhere that this figure is about 100.) And the potential implications of the court's ruling are not limited to release of prisoners from Gitmo. The fact that it could also place greater burdens of evidence-gathering on soldiers on the battlefield and at the margins means that terrorists we capture in the future will not be detained or will be released prematurely. We should not avert our eyes from the fact that higher standards of judicial review designed to minimize false positives in military detentions will likely produce false negatives that mean more Americans will be killed than would otherwise be the case.
After reading Boumediene a few times, however, I doubt that Justice Scalia's worst-case scenario will come to pass. Because at the end of Justice Kennedy's opaque opinion, no doubt in response to the fierce dissents, he walks away from its more burdensome implications. He notes that "accommodations can be made to reduce the burden habeas corpus proceedings will place on the military." He acknowledges (citing a pro-government state secrets case) the government's "legitimate interest in protecting sources and methods of intelligence gathering." He insists that "the law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." And he states (again citing a famously pro-government precedent) that "in considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches."
I don't think this prospective deference to the political branches in a case that affords them little deference is posturing. I think Justice Kennedy means it. His opinion is mostly directed to the political branches' attempt to deny the court a seat at the table in reviewing counterterrorism policy. But he also seems to realize that, as Justice O'Connor said in a 2005 speech at West Point concerning the court's role in terrorism cases, "The court is only one branch of government, and it cannot, and should not, give broad answers to the difficult policy questions that face our nation today." These difficult policy questions often require trade-offs between liberty and security that the politically unaccountable court, for all its assertions of relevance, is uncomfortable making. Uncomfortable and ill-equipped. For as Justice Kennedy says in one of the most revealing passages in his opinion, "Unlike the President and some designated members of Congress, neither the members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." When this admission is combined with Kennedy's prospective pledges of deference and his insistence that the habeas remedy is flexible and depends on the nature of the threat, the opinion seems much less threatening to the executive branch.
In truth, Boumediene could turn out to be a huge deal or not a big deal at all; the court leaves open almost all possibilities except the elimination of some form of habeas review over Gitmo detentions. I think the decision will, over time, come to look like the court's other terrorism decisions—Hamdi (the 2004 case that upheld the president's power to detain a U.S. citizen enemy combatant but imposed modest due process constraints) and Hamdan (the 2006 case that invalidated the president's military commissions but invited Congress to reconstitute them, which it did). Both of these cases were originally viewed as stinging defeats for the president that undermined his war-on-terrorism policies. Over time, they came to be seen as gentle nudges by the court to the president and Congress to work together, leading to improvements in the quality of our counterterrorism policies from the baseline of 2001.
But not enough improvement. Congress still has not done anything since its September 2001 Authorization To Use Military Force to clarify who precisely in this novel war can be detained under traditional noncriminal military detention powers. Nor has it yet said anything about standards of proof, access to evidence and lawyers, the relationship between detention and trial, and many other issues that a comprehensive detention regime should address. All Congress has done about detention is to strip habeas corpus and establish direct judicial review over the military detainee review procedures to ensure their compliance with the military's procedures and "the Constitution and laws of the United States," a standard that provides no concrete guidance whatsoever to courts. Chief Justice Roberts' excellent dissent argued that the court should have first allowed the lower courts to consider the meaning of this statutory standard and the possibility that it was an adequate substitute for habeas before deciding the constitutional question. I agree, but the truth is that Congress provided no real guidance on these issues in the statute.
Despite its extravagant rhetoric and reasoning, in Boumediene the Supreme Court has once again left open the door for the political branches to take the lead together in making the difficult tradeoffs required to craft a long-term detention policy. Whether and when they will do so remains to be seen. The issue has already become entangled in election-year politics, with the White House and Republican members of Congress threatening to push comprehensive legislation that will put the Democrats and their presidential candidate on the spot, and many Democrats insisting that any such legislation should await the election.
Any thoughts, Cliff, Dahlia, or Walter, on whether this legislation is a good idea, whether it should happen before or after the election, and what it should look like? I have views, but I'm out of time and space.