Prisoner abuse and the Guantanamo / Padilla / Hamdi cases: A couple of readers e-mailed to suggest that the prisoner abuse scandal might influence the Court’s judgment in the Guantanamo detainees case and the military detention cases (Padilla and Hamdi), because it might make the Court feel that the Executive Branch can’t be trusted. I think it’s certainly possible, but I doubt that it would happen, and here’s why.

     I think that to the Justices the question in the Guantanamo, Padilla, and Hamdi cases is not whether detention of people who aren’t really enemy soldiers or terrorists is bad — most people agree that it is — or whether abuses are likely to happen — obviously they will. Rather, the question is whether the right solution (with an eye both towards correcting abuses and not unduly interfering with fighting a war) is to get the civilian judiciary involved in correcting the abuses.

     The government’s argument in these cases is that the proper remedy for the abuses is through the political branches, and the military that they control. The military makes its decisions. The Defense Department and ultimately the President can review them. Congress can step in, through its investigative power, its funding power, and its legislative power. All these officials will be accountable to the public. And foreign governments can also step in on behalf of their citizens (as I understand they have been doing with regard to at least some of the Guantanamo detainees).

     This sort of supervisory process has in fact been the traditional means of preventing abuse and wrongful detention of enemy captives. The civilian courts, to my knowledge, have never gotten seriously involved in this process in the past. The government argues that they ought not get involved now.

     In this respect, the recent prisoner abuse scandal, shocking as it may be, in considerable measure supports the government’s argument. The abuse was investigated by the military. The press got its hand on it. The Executive Branch seems to be willing to try to correct it, and the public and Congress seem to be pressuring the Executive to do so. Among other things, this is happening precisely because prisoner abuse is so broadly condemned, and seen as so unnecessary (at least in situations such as this one) to military success.

     So the traditional review process seems to be working. It’s working far, far from perfectly, and certainly quite slowly. But I doubt that the Justices will think that it would have worked better had civilian courts gotten involved.

     Civilian judges would be understandably reluctant to try to subpoena people who are working in Iraqi prisons, or to bring detainees to the U.S. for court hearings, or to look through confidential military documents. The Justices know and if civilian judges would be too active, they may interfere too much with military effectiveness, especially since they know that if they intervene in the cases of genuine abuse they’ll also be called to intervene in many times more cases of alleged abuse. And if they’re too passive (or even if they’re just active enough), they may actually deflect responsibility from traditional military investigations: They’ll make it too easy for the Executive to make excuses such as “Sorry, we can’t talk about it, there’s litigation going on.” Finally, remember just how painfully slow the civil justice process really is — much slower than the military review process (for all its flaws) has been.

     So to the Justices, I think this will be a matter of comparative institutional effectiveness: The question wouldn’t be whether the military / executive / congressional / public pressure remedies are perfect or even very good, but rather whether the Justices think adding the civilian judicial remedies would make things better. I suspect the Justices would say, even (or perhaps especially) in a case like this one — or in the Guantanamo detentions, where the concern is chiefly detention of the wrong people rather than abuse of the detainees — that it’s better for the civilian courts to stay out. (My guess is also that even those Justices who endorse judicial control over the conditions of confinement in civilian prisons aren’t terribly thrilled by the way that control process works. While they wouldn’t abandon it, its track record isn’t going to make them excited about extending the process into a zone where it has never been applied.)

     Similar considerations may well influence the Court in Padilla and Hamdi. Still, I think (as I’ve mentioned before) that there are some important distinctions that will likely lead the Court to assert more of a role at least in Padilla.

     There is a tradition of courts reviewing executive detention of U.S. citizens; and this tradition isn’t just aimed at correcting injustice or inhumanity in individual cases, but at preserving American democracy by checking the government’s power to suppress domestic dissent. That’s why I think that in Padilla, the Court will indeed provide at least some civilian review of the military’s decision that Padilla is indeed an enemy combatant. The Court wouldn’t be willing to let the government detain an American citizen who is seized in America just because the government says he’s a soldier for the enemy, since that rationale could be used to detain any dissenter. Some of the weaknesses of civilian review that I identify above will still be present. But, unlike in the Guantanamo case, there’s more of a felt necessity (social protection of American democracy and not just protection of individual detainees) for civilian intervention, and more of a tradition supporting it.

     With Hamdi, who was caught on the battlefield, the Court might be willing to give the government free rein, since those circumstances do more strongly support the judgment that he’s an enemy combatant — and since they provide a limiting principle that would keep the detention power from becoming available as a tool for broadly suppressing domestic opposition. But in Padilla, I think the Court will think that adding an extra level of judicial review will indeed make things better. This is not because recent abuses of prisoners show that abuse can happen, since the Court has all along been fully aware that abuse can happen (one doesn’t need graphic examples, especially from somewhat different contexts, to know that military detention of U.S. citizens can be quite dangerous). Rather, it’s because the Justices are likely to think that in this situation civilian judicial participation is more necessary to stem abuse (since the abuse is potentially much more harmful), and more traditionally recognized as a necessary and effective means of stemming abuse.

     But who knows? As should be clear from the above discussion, the arguments are founded on pretty contestable empirical claims; I’m guessing that this is how the Justices will think, but I can’t be at all sure. My track record in predicting the Justices’ decisions is awfully weak; and perhaps some of the swing Justices might view things quite differently than how I predict. I guess we’ll know in a couple of months.