The Supreme Court Breakfast Table

Objects in the Rearview Mirror May Appear Larger Than They Are
An email conversation about the news of the day.
June 25 2008 10:34 AM

The Supreme Court Breakfast Table

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Dear Walter, Dahlia, and Cliff,

I have a few brief things to say in response to Walter's and Cliff's great posts on Boumediene before this morning's decisions take over everyone's attention. 

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Walter might be right about Boumediene being huge. But I still think that—as with similar claims made about Hamdi, Rasul, and Hamdan at this very Breakfast Table and elsewhere in 2004 and 2006—it won't be nearly as huge as it seems in the week after it was announced. The question is what Boumediene adds to the system of military tribunals and direct federal court review that was in place long before Boumediene. Not much, probably, especially since that system, as interpreted by the D.C. Circuit, is looking pretty robust. The Supreme Court declined to say that this system violated due process, declined to say much about what the additional habeas remedy looked like, and said it would defer to the political branches in figuring this latter issue out. I agree that "the line between some due process and none is at the heart of liberty." But the detainees were getting a lot of due process before Boumediene—much more than any alleged alien enemy combatants have ever received in this country. 

Walter recounts the administration's early aggressive claims against judicial review, and again I agree (as I argued in my book The Terror Presidency) that those claims were self-defeating. But those claims were rejected years ago, and (largely because of judicial nudges) Congress has now put in place a system of statutory judicial review. Boumediene had nothing to do with any of this. I also doubt that Boumediene will bring due process to bear on many other aspects of the administration's counterterrorism policies that Walter and the world dislike, for the court extended the constitutional habeas remedy for alien enemy combatants only to Gitmo. 

And also consider the largely unnoticed case of Munaf v. Geren, issued the same day as Boumediene. There, a unanimous court held that two American citizens transferred by U.S. military forces in Iraq to Iraqi officials for criminal trial could invoke the statutory writ of habeas corpus but quickly added that the writ gave them no relief. They reached this conclusion even though the petitioners claimed they would be tortured by Iraqi officials. The court said such allegations must "be addressed by the political branches, not the judiciary," adding that the "Judiciary is not suited to second-guess" the executive's determination that the petitioners would not be tortured, because doing so "would require federal courts to pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice in this area."

I would make similar points in response to Cliff's contention that the detainees have been given "only a weak and limited process" and that "one way or another, we need to move quickly to finally provide the detainees with fair procedures in which to address their imprisonment." I agree, and have argued in several places, that despite the unprecedented procedural rights given to the detainees at Gitmo, we need a better framework for indefinite noncriminal detention in this novel war. I just think that—as we learned after the decisions in 2004 and 2006—the idea that a quick or effective detention framework can or will come from courts alone, or even courts primarily, is misplaced. In the end it can come only from Congress, and in the end I expect that Boumediene will be seen mainly as the event that finally got Congress to act. 

Good luck in your three cases, Walter (though I must confess that I am rooting for the other side in the gun case).

Jack

Jack Goldsmith, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is a member of the Hoover Institution's Task Force on National Security and Law.

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