-
sponsorship
Deborah asks an excellent question: "What is it in particular about Gitmo that courts can't handle?"
I don't expect judges to be very good at knowing who is or is not a terrorist because I doubt the evidence the government has resembles the kind of evidence judges are used to seeing. Judges are used to seeing particular kinds of evidence in particular kinds of hearings. They generally hear live testimony from live witnesses, evidence in sworn affidavits, and the like, and they apply familiar legal standards to the facts to reach a decision. Of course they make errors in those proceedings, but at least the type of evidence and the context is part of the familiar day-to-day experience of litigators and judges.
My sense is that the detainees were mostly seized in battle or were handed over based on hearsay by allied forces. In that setting, hard and clear evidence of the sort that judges are used to working with is likely to be relatively light, regardless of whether an individual is a hardened al-Qaida terrorist or just some unfortunate fellow who was in the wrong place at the wrong time. Instead, the evidence is likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified. Judges are smart people, but I would think that this evidence is likely to seem pretty foreign and unfamiliar to judges used to run-of-the-mill competency hearings, probable cause hearings, sentencings, and the like.
Now, one response would be that if the government doesn't have the kind of strong evidence that the law usually requires to hold a person, then the detainees should be released. And if the judges end up releasing bad people who were held on very weak evidence, then that is the executive's fault rather than the court's. Maybe that's right. But if it's right, it's an argument about what the standard of judicial review should be, not whether judicial review is likely to lead to the release of bad people.
To be clear, I'm not saying that I think the institutional competence question should govern the issue. As I see it, whether the writ extends is distinct from whether judges are good at this stuff: Scalia's point about American lives being lost may or may not be right, but it shouldn't be relevant to the question of whether the habeas writ must extend to Guantanamo (although presumably it will be relevant to the subsequent determination of the proper standard of review down the road).
-
sponsorship
As I wrote a few weeks back, there are some pretty serious factual flaws in Justice Scalia's Boumediene rant. Is the 30 men "returned to the battlefield" one of them? Phil says yes. Orin says no. Eric says everyone makes mistakes, but the military makes less than the rest of us (more on that below).
We may well never know about these particular 30. On the face of it, there are plenty of reasons not to take a Pentagon claim to the 30-detainees effect at face value. DoD hasn't exactly established an unblemished record of credibility on detention matters. And the data DoD have released leaves one wondering. For example, among the 30 DoD says it's counting are the five Uighurs who were released to Albania—these are the ethnic Muslim Chinese detainees who couldn't be sent back to China given the high likelihood they'd be tortured there and were instead taken in by the Albanians. As best one can discern, their only post-release "offense" to date seems to be having talked (from the comfort of their Albanian U.N. refugee facility) to Tim Golden at the New York Times about their time at Gitmo. Asymmetric warfare, I take it. One could go on. Or just read more about it in places like here or here. In any case, as I thought the recent McClatchy study of released Gitmo detainees helped show, Eric, it does looks like at least some of the folks who left Gitmo and then worked against the United States were indeed radicalized there—so they weren't particularly going "back" to the "battlefield;" they were joining it for the first time.
Bigger picture, it seems to me Phil is right to point out that the military is the one who made the decision to let these particular guys out—presumably demonstrating that the existing detainee status-review process is not only rights-abusing but error-prone in every direction (keeping those who should be released, releasing those who perhaps should be still detained). On the other hand, is it possible that some former Gitmo detainees were let go and then did bad things? Yes. All the more reason to figure out how/whether we can do Gitmo better.
So who better to do it? Here's where Orin and Eric lose me. Why assume, as Orin puts it, that because "[j]udges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't," judges are likely to do a worse job in making these status determinations than the military? I admit, that seems awfully counterintuitive to me. For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.
On the military side, there's some parallel experience to be found in the often very good military justice system and, to an extent, in the services' criminal investigative divisions, although of course we all know the military has engaged neither at Gitmo (either with respect to status hearings or to trial). Indeed, often in the institutional military equivalent of a status hearing—administrative, investigative-type proceedings in wartime—the first-order "judges" are just whomever the relevant field commander appoints (experience or indeed any relevant training not necessarily required, as I understand it). With respect to "mere" detainee status determinations in particular, the last time before 9/11 the U.S. military was involved in any major detention operation was the 1991 Iraq war—long enough ago for plenty of those folks with any actual hands-on experience in such ops to have left the service. And for those who remain, the 1991 cases turned out not to offer particularly relevant experience anyway, as it was made clear to the military they should not follow the same procedures this time around as it did then.
The military houses plenty of smart people, of course, but is it an institution obviously better suited to deciding who's a terrorist and who's not? Eric says the reason it is has to do with comparative incentives: a military "judge" has a more immediate interest in getting the judgment right than a civilian judge. I dunno. Eric's point a) is speculative (most judges I know aren't crazy about terrorists either), b) assumes the military decisions aren't complicated by political guidance that skews their decision-making (not our recent experience), c) also wrongly assumes the military isn't thwarted by other federal government agencies with other incentives (like the CIA's apparent refusal to share evidence with the CSRTs), and d) assumes that these folks with the best interests at heart have the training and resources they need to make an informed decision (hasn't looked that way either). One could go on here, too.
In the meantime, I'm left with an impression: The courts have done pretty well with who's-who judgments and with far less of the devastatingly adverse strategic security consequences than our current Gitmo approach. And they have the power, at least in theory, by constitutional structure, judicial order, and institutional competence, to escape failings b), c), and d). So lemme try again: What is it in particular about Gitmo that courts can't handle?
-
sponsorship
Orin is right to criticize Phil's canard-crushing post. Either Boumediene will result in substantive review of the military's detention decisions, or it will not. If not, then nothing has changed. If so, then courts will sometimes correctly overturn mistaken decisions to detain and will sometimes incorrectly overturn correct decisions to detain. (The contrary view—that courts make no mistakes—is not worth addressing.) The first type of outcome will result in nondangerous people going free; the second type of outcome will result in dangerous people going free. We already know that the military has set free dangerous people, and we also know that it has detained nondangerous people for a significant amount of time. As Orin points out, courts can't stop the military from releasing nondangerous people; the courts will focus only on the people that the military seeks to detain. Unless courts defer to the military's judgment, judges will release some of these people—and if judges make errors, as they do, they will release some dangerous people in addition to releasing some nondangerous people.
Many people talk as though the military would like nothing better than to incarcerate the entire populations of Afghanistan and Iraq. In fact, the military faces enormous logistic costs and gains nothing by detaining people who are not dangerous. So the military already has incentives to release the nondangerous and to detain the dangerous. Whether these incentives are adequate is impossible to say. It might be that the military doesn't put enough weight on the moral harm of detaining the nondangerous. It is possible that civilian judges will take that harm more seriously. It is also possible that civilian judges will overweight that harm, demanding an excessively high standard that results in the release of too many dangerous people. This is Scalia's concern; he overstates his case, but it is perfectly reasonable.
Finally, Phil conjectures that Gitmo radicalizes detainees, making them more likely to engage in terrorism if they are released. He seems to have in mind people who are not already radical but who are picked up incorrectly, yet people who are sufficiently inclined to violence that unfair treatment will push them over the edge. I suspect that if there are people in this category, they are not going to be mollified much by having a habeas proceeding. Once you start detaining and releasing people, you run the risk that they will be radicalized; this is just one of many costs—one suspects a pretty trivial one, next to the others that the detention regime creates. Ordinary law enforcement accepts this cost—we don't have a zero error rate for incarceration of suspected criminals even though we know that some people might be radicalized in prison. It is a cost that the military itself has every reason to take account of, without the need of habeas proceedings.
Join the Fray: our reader discussion forum
What did you think of this article?