Convictions: Slate's blog on legal issues

Can Judges Identify Terorrists?

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).

More on Scalia vs. Carter

Phil, I find myself in the awkward position of disagreeing both with Scalia's comments about Boumediene and your critique of them.

You offer three reasons why Scalia's comments are wrong. Your first point, that we are really at war with "a very diverse constellation of [radical Islamist] groups" rather that "radical Islamists" generally, sounds correct to me. But I'm not sure why it is relevant to Scalia's argument. Scalia's shorthand may have been imprecise, but I don't see that as such a critical error to the extent it was one at all.

Your second point, that we might release fewer bad terrorists with court fact-findings than military ones, seems unlikely to me. Presumably the availability of habeas relief only expands the group of people that may be released; I'm not sure how it would limit it. And while the military may make mistakes in releasing people who are dangerous, I would imagine judges will make more. Judges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't. The Constitution may require them to do it, but that doesn't mean they'll be good at it.

Your third point, that extending habeas jurisdiction to potential terrorists may lessen the threat the detainees pose by impressing them with our commitment to due process, also seems unlikely. The detainees have been held for six years, and any legal process will take a few more years; I doubt a detainee who gets out after a decade or so in Gitmo will think well of the United States for its judicial process.

To be clear, I'm not saying I agree with Justice Scalia's argument or the fact he made it. I don't. To begin with, I doubt Boumediene will have much practical effect. I predict it will prove to be a largely symbolic opinion, rather than one that will make a major difference in the real world.

Second, and more important, I think it's quite troublesome when Supreme Court justices devote large chunks of dissents (or worse yet, time in TV appearances) to decrying the practical impact of majority opinions. That only leaves the impression that the dissenting justice based his own vote on policy rather than law. I would rather judges apply the law as they see it and save the sound bites for the elected branches. But with that said, I'm not sure your post "crushed" Scalia's "canards" in quite the way you hoped.

Gitmo—Next Time Just Issue a Press Release

After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.  

The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the "war on terror," (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that's what the opinion effectively does—that, and express the view that since we're not sure we're at war, holding people without formal charge or trial who may or may not be associated with the war we're not sure we're fighting for more than six years is not good.

Spurning the president's foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there's no reason the court can't get into the act, too. So, despite its soaring rhetoric that "security subsists in fidelity to freedom's first principles," the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we're feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.

Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it's a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice's dissent admirably illustrates the empty suit character of the majority. I'm not prepared to join Justice Scalia's anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a "loaded weapon" but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.

Next time, issue a press release. They are shorter and easier to read.