Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)
No matter what your particular legal viewpoint about detention and Guantanamo, this report will be required reading because of the breadth and depth of its analysis – running to all the extant cases. Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obams administration on detention policy. Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.
I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below:
Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:
President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.
Boumediene was interesting and important as much for what it did not do as for what it did. For example, though the issue was briefed, the Court chose not to weigh in on the precise nature and scope of the detention power being exercised at Guantanamo. Did it apply only to some subset of the members of al Qaeda, the Taliban, or their co-belligerents? To all members? What does membership mean in that context anyway? What about important but independent supporters? What is the best reading of IHL on these matters, and does IHL actually enter in to the calculus? What role might the direct participation in hostilities standard play?
And perhaps most important, though the Court had a few things to say about the required procedural features of habeas review, it explicitly left it to the lower courts to sketch the details regarding most of the pertinent evidentiary and procedural rules. There were some initial calls for legislation to address these questions, but as we saw in 2009 there proved to be little appetite for this on either end of Pennsylvania Avenue. And so these questions have indeed been left to the courts to answer. Over the past year, the judges of the district court in DC have been doing just that, producing a number of merits decisions to this point (often favoring the detainee).
Those merits decisions obviously are quite important, but Ben, Rabea, and I are interested just as much if not more so in the substantive and procedural rules that the courts are creating (or at least trying to create) along the way. Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the Post reports today will continue to be held under color of the AUMF), as well as for any detainees in other locations as to which the federal courts similarly extend habeas jurisdiction (whether and to what extent such jurisdiction applies to our detention operations in Afghanistan, for example, is a question currently pending in the D.C. Circuit).
Indeed, some decisions the judges are making—particularly their views regarding just who comes within the scope of the AUMF—have direct implications for activities other than GTMO detention, such as targeting decisions. Quite a lot turns on them, and yet there was relatively little coverage of the growing body of caselaw aside from the ultimate merits determinations. We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so far.
Among other things, we found a lot of disagreement among the judges. That observation is not original with us; in fact, more than one of the judges involved in these cases has lamented this fact publicly (see, e.g., the quotes from Judge Lamberth in Ari Shapiro’s story about our report on NPR this morning). But we think we make an important contribution by documenting the details and nuances of these disagreements—as well as the points of agreement among the judges—and discussing the problems that may follow from them.
(Cross posted to Opinio Juris.)
Ilya Somin says:
Very interesting. Also interesting that neither Congress nor the President seem to want to take this issue on, instead leaving it up to the courts to make the rules. I know Wittes, at least, has argued that Congress should take the lead. But if they don’t want to, I’m not sure anything can be done about it.
January 22, 2010, 9:42 pmKenneth Anderson says:
I always find inter-branch relations hard to fathom in a practical sense because I’ve never worked in government … but I remember Jack Goldsmith saying in his book somewhere that only the executive can hold the Congress’s feet to the fire to make it act.
January 22, 2010, 9:52 pmorca says:
It’s good to see there are some judges who refuse to admit statements made by defendants while they were being tortured.
January 22, 2010, 11:57 pmPlugInMonster says:
This is a war we’re fighting, not a crime-fighting operation. Common sense people know the deal.
January 23, 2010, 5:02 amAnonsters says:
What, Congress isn’t interested in taking on an incredibly complex issue only made more difficult by the boneheaded policies and actions of a previous administration? What, Congress isn’t interested in taking on the project of trying to color inside the lines, because it requires the attention span of at least a gnat and the fine motor skills of a 3 year old?
What’s pernicious about this (the truth of which I’m not disputing) is it means that the Executive is left, in practice, unchecked and unfettered. I started out with hope that Obama would do better on national security issues than Bush, but frankly, it’s more of the same. Not that I’m terribly surprised; after all, since 1950, pretty much all the presidents have been happy to arrogate more and more power.
Oh boy. Let’s have that fight again.
January 23, 2010, 5:52 amcboldt says:
– What, Congress isn’t interested in taking on an incredibly complex issue only made more difficult by the boneheaded policies and actions of a previous administration? –
January 23, 2010, 9:26 amCongress is a risk-averse and accountability-averse institution. It took SCOTUS promulgation of the Hamdan decision to cause Congress to act on the fact that the executive had (unconstitutionally) crafted an entire court system outside of Congressional action. Most member of Congress knew Congress had a duty, well before that – there were something like 10 or 12 proposed bills to Congressionally form military commissions, the first proposal coming a month or two after the terrorist attack of 9/11/2001. None taken up for debate. As Senator Specter says, Congress prefers to punt difficult issues to others.
Howard Gilbert says:
If common law Habeas cannot be suspended by Congress except in enumerated circumstances, then by what theory do you suppose it can be regulated by legislation. Borrowing a phrase, the power to regulate is the power to suspend.
Given that common law Habeas was a power of the courts, and the courts were spectacularly unhelpful during the Revolution, the founding fathers as one of the first acts passed by Congress created a statutory Habeas power with petitions and rules. That has been the only type of Habeas used up to Boumediene. However, once Congress stripped statutory Habeas away, the Court found the old unused common law Habeas was still available.
Not having been used for 230 years, and applied to the unusual case of detained prisoners of war, there are many decisions to be made. However, since common law Habeas is a power of the Article III Courts, it is logically a requirement of the courts to decide how it works.
This is not to say that Congress could not reverse the DTA+MCA and create a new statutory Habeas that applied to prisoners of war, but that would be an additional type of Habeas and not a legislated set of rules for common law Habeas.
Also, the cat is now out of the bag. Common law Habeas, once rediscovered, is not restricted to prisoner of war issues. Any judge in any Circuit can now apply it to any case where he feels a detention may be illegal independently from statutory Habeas and an restrictions that Congress may have applied to statutory Habeas. In every case where the law now says that Habeas is unavailable, common law Habeas empowers the judge to ignore Congress and exercise his newly rediscovered Article III prerogative.
January 23, 2010, 9:40 amChris Travers says:
I don’t think there is any question that Congress can provide uniform procedures, providing that they are Constitutionally adequate.
If nothing else a largely adequate regime of habeas petitions would remove a vast number of the cases from common law habeas procedures, right?
January 23, 2010, 12:02 pmHoward Gilbert says:
Congress can provide an adequate substitute for Habeas, and the rules of this substitute determine if it is adequate. The adequate substitute for common law Habeas may be a type of statutory Habeas specific to prisoners of war. However, common law Habeas is a power of the courts under Article III, and like all common law it can be superseded by statute (subject to the suspension rule) but it cannot be defined by Congress and remain common law.
January 23, 2010, 12:12 pmorca says:
I suspect the push to torture captives is more about a desire to drag America down into the sewer than about fighting a “war.”
January 23, 2010, 1:21 pmArthurKirkland says:
To provide context, and to promote evaluation of credibility, I say again:
Before addressing the issue of prisoners — approximating 50 — who might require extraordinary treatment, the number of prisoners already dismissed can be recognized as a damning indictment of the incompetents who imprisoned them and held them for years. Innocents, some acquired from sketchy sources in exchange for bounty, held without regard for their interests or their culpability for many years — by people whose conduct the Supreme Court rebuked — at great cost to our national stature, our national interest (by understandably provoking a desire for vengeance by many people), and to common decency.
Had those who botched their assignments possessed much inventory of that decency, all would have apologized, most would have resigned in disgrace and a few (those with personal honor and with particularly bad acts on their record) would have killed themselves by now.
January 23, 2010, 1:38 pmChris Travers says:
I think a major part of the problem started with Hamdi v. Rumsfeld. The Supreme Court was unable to provide any clear guidance to the lower courts and I suspect the case is of dubious precedential value because the case was decided by a minority of the court. Indeed, the court appeared to be split 4-4-1 over the issue of Hamdi’s detention generally (four justices held that the detention was subject to some limited habeas rights, four held that full habeas rights should apply, and one held that habeas should not apply). One can then read Hamdi as only marginally easier to understand than McConnell v. FEC.
However, after Hamdi, we saw a dramatic shift in the Court’s approach to war on terror cases. In Rasul v. Bush, the federal habeas process was expanded to prisoners in Guantanamo Bay but with little advice over the how to proceed. In essence the common thread through most of these cases is that the Supreme Court seems to mandate court involvement but seems unable to provide any credible guidance at all on the scope of that involvement. This is the case in Boumedine (sp?) and virtually every other case.
January 23, 2010, 2:30 pmbailey says:
I wonder why there isn’t a vast body of caselaw on this issue. We have been in wars before as a nation. Perhaps courts had more sense in days of yore than to interfere in the process. Would “due process for Nazi prisoners” have made it far in the 40′s.
January 23, 2010, 2:52 pmAnonsters says:
A major part of the problem started with an O’Connor opinion? You don’t say?
January 23, 2010, 3:02 pmPlugInMonster says:
That doesn’t pass the smell test. Occam’s Razor says that neocons have no compelling interest to “drag American down into the sewer”. I didn’t read that paragraph in PNAC’s newsletter.
January 23, 2010, 4:14 pmChris Travers says:
It’s not just an O’Connor opinion. It is an O’Connor opinion that is a minority opinion, and which did not in any reasonable way carry the majority of the court.
January 23, 2010, 4:14 pmorca says:
Sure they do. Every time the American Right manages to lower our moral standards, their compatriots from China to the Sudan are freed to torture, engage in targeted murders, inade their neighbors, etc. with less worry.
To them, America’s shining example of the past is like a cop’s flashlight…they are glad its dimming.
January 23, 2010, 4:31 pmArrowSmith says:
As if those countries weren’t torturing before…. Maybe if you improve you can get to sub-troll status.
January 23, 2010, 4:33 pmorca says:
The penalties America can impose on these countries for their disgusting behavior is what we’re talking about.
Now that we’ve left the moral high ground, there’s not much we can say or do about the world’s degenerate countries…we are one.
And plenty of people are happy about that.
January 23, 2010, 4:59 pmArthurKirkland says:
Would this abandonment of the moral high ground retroactively cleanse the right-wing death squads trained, funded and endorsed by Americans in and out of government years ago?
Redemption, at last, for Oliver North and Elliott Abrams?
Nah. Doesn’t work like that.
January 23, 2010, 7:12 pmChris Travers says:
You know, I am no fan of torture, and I am in favor of prosecuting it even when done by the CIA.
However, it seems to my mind that it is important to understand that countries are going to have different problems. I suspect you have more in common with Project for the New American Century than you do with me regarding paternalism for the world’s less developed nations.
January 23, 2010, 9:40 pmwm13 says:
Hmm, well, certainly the level of discourse from Arthur Kirkland et al. shows why Congress sees little profit in taking up this issue. I mean, if your political opponents suggest that they would like to see you dead, that doesn’t suggest that the normal legislative processes of discussion and compromise are operational.
January 23, 2010, 10:26 pmorca says:
Heck, we keep going and we’ll cleanse slavery outta the history books.
January 24, 2010, 12:49 am