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Monday, June 16, 2008

Who's Afraid of a Little Process?

If one peruses various of the comment threads to posts about the Supreme Court's decision last Thursday in Boumediene (see, for example, the comments to this post or to this one), one finds a similar criticism of Justice Kennedy's opinion repeatedly echoed in various places -- that "foreign enemy combatants" are not part of "We the People," and so therefore are undeserving of constitutional protections (including access to the writ of habeas corpus). I suspect that most -- if not all -- of the comments are actually by the same person, but whether they are or not is, ultimately, beside the point.

Instead, what has really gotten to me, and what I wanted to write about, is when/how we, as a legal community, forgot about the significance of process. The commenter(s) repeatedly assert(s) that it is "clear" that the detainees are bad guys, and that the process provided by the Military Commissions Act and the Detainee Treatment Act is more than adequate to assuage any fairness concerns.

The problem, as Kennedy's majority opinion recounts fairly forcefully, is that there is no meaningful chance to contest the government's allegations in the DTA/MCA process. Consider this passage, from page 61 of the opinion:

One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.

So here's my question: Whatever happened to the significance of process?

Why are so many of the critics of Boumediene "convinced" that the detainees are "evildoers," notwithstanding the well-documented defects in the process provided by the DTA and MCA? Haven't we learned the hard way, too many times, that arbitrary governmental decisions have an incredibly high risk of error? Perhaps most simply, what of Justice Frankfurter's famous maxim that ""the history of liberty has largely been the history of observance of procedural safeguards." Granted, many of the detainees were picked up by the U.S. military "on the battlefield," in the midst of combat operations against our soliders. But just as many weren't, including Boumediene himself. And it's important to keep that in mind...

I recognize, as I must, that reasonable people will disagree on the ultimate merits questions in these cases -- on whether individuals affiliated with al Qaeda can be held indefinitely, or potentially tried by military commissions, etc. But doesn't all of this depend on at least some faith that the individuals in question are in fact who the government says they are? If the answer is "yes," why be so upset at a Supreme Court decision giving the detainees a reasonable opportunity to contest that allegation? if the answer is "no," then what, other than the good graces of the Executive Branch, keeps us from being next?

Postscript: Apropos the above, and the importance of process to separate the innocent from the guilty, consider this McClatchy story posted today...

Posted by Steve Vladeck on June 16, 2008 at 12:21 AM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink

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if the answer is "no," then what, other than the good graces of the Executive Branch, keeps us from being next?

I read the comments to those posts, and they do not say what you claim they "say" in quotations. But, aside from that, you seem to ignore that Congress weighed in on these questions, and from the Youngstown perspective, you have the Executive and Congress in agreement. This is not a runaway Executive violating precedent, but rather a runaway Supreme Court rejecting precedent written by the author of Youngtown and the Chief Justice of the Nuremberg trials, Justice Robert Jackson. The party advocating adherence to Eisentrager was the United States government. So it is not the case that the Exceutive can snatch up anyone off the street and declare them an "enemy combatant" or that the Executive is acting on its own; here you have Congress and the Executive defining a narrow class of foreigners who are belligerents against this nation, and passing laws that are consistent with the precedent written by Justice Jackson, the judge who is arguably single-handedly responsible for the moral authority this nation has sustained post-WWII, and yet one Justice -- Anthrony Kennedy -- is tossing it all into the trash. That is the reason Newt Gingrich is fulminating on Face the Nation, and Fred Thompson is fulminating on This Week, and John McCain is making it an electoral issue. Because the decision is wrong. Millions of people in this country disagree with Steve Vladeck, and it's not just President Bush and Antonin Scalia. It's lots of people -- including Democrats -- with common sense.

Posted by: Jack Bauer | Jun 16, 2008 2:38:59 AM

First, I was not trying to mis-characterize the comments, and welcome your input as to where/how I did (other than just asserting as much).

Second, there are plenty of instances where the Executive and Congress are in agreement, and yet what they are doing is still unconstitutional. That's not an argument in and of itself, unless one believes that cases such as Printz, New York, Lopez, and Morrison are wrongly decided because there was no separation-of-powers problem.

Third, I'm not sure what Eisentrager does for you here. The 22 petitioners in Eisentrager admitted that they were either soldiers or civilian contractors employed by the German Army (and were therefore "enemy aliens"), and so they had no possible basis for contesting their convictions by military tribunal for violating the laws of war by fighting for Japan after Germany had surrendered. If Jackson was so convinced that they had no right to habeas corpus simply because they were foreign belligerents outside the territorial United States, why did he devote upwards of 20 pages of the opinion to the merits of their claims? I always understood Eisentrager as saying that, based on who these guys were, they had no meritorious claims, and therefore no injury to be suffered from the fact that the habeas statute didn't confer jurisdiction. It shouldn't take that much to see how these detainees are differently situated, right?

Fourth, I'm not sure when you last read the Military Commissions Act, but (a) its definition of "enemy combatant" is not limited to non-citizens; and (b) its definition is incredibly broad -- "a person who has engaged in hostilities _or_ who has purposefully and materially supported hostilities against the United States or its co-belligerents . . . ." If you've checked out the case law concerning "material support," you know that it cuts incredibly widely, and not just to those actually engaged in operations against the U.S.

Fifth, Kennedy had four other votes.

Finally, Jackson wasn't Chief Justice @ Nuremberg; he was lead prosecutor. Not a difference that affects your larger point, to be sure, but one worth pointing out. In any event, I'm not sure that it's Nuremberg that accounts for our moral authority post-WWII... but even if it is, so what?

More generally, I understand that lots of people are upset by the decision. What I'm trying to get at is _why_, besides the politics. You say these people have "common sense," (and so apparently I don't), but I must be missing the gap here. Why is it so disturbing to allow an individual picked up somewhere in the world (e.g., Sarajevo), and shipped off to Guantanamo, to ask a federal judge to decide if the government has the authority to hold him? I get that there is outrage; I'm just trying to peel back the politics to find the legal rationale...

Posted by: Steve Vladeck | Jun 16, 2008 2:56:29 AM

Steve,

Does your argument hinge on whether you think the Gitmo detainees are part of our "legal community" or are not part of our legal community? To oversimplify, we have a history of giving process to those in our community, but we have no history of giving process to those outside it. If a critic of Boumediene thinks that the detainees are outside our community, and therefore that the majority opinion was wrong for treating the detainees as inside it, I'm not sure how helpful it is to remind that critic we have a history of giving process to those inside our community. I suspect the critic will find that reminder obvious but irrelevant.

Posted by: Orin Kerr | Jun 16, 2008 3:25:10 AM

Orin -- A fair point... I guess what I'm trying to suggest is that, in my view, process is necessary to answer that question. One way of reading Eisentrager is that Jackson's opinion is not about non-citizens generally, but about non-citizens who are "enemy aliens." If that's true, then to me process is necessary to establish the jurisdictional fact (i.e., whether one is an enemy alien, or its post-9/11 analogue), and to therefore determine if the detainee has further substantive rights he can enforce on the merits or not...

Posted by: Steve Vladeck | Jun 16, 2008 3:29:38 AM

Steve,

But those on the other side don't think any process is needed to answer that question. The detainees are not making claims that they are part of the U.S legal community beyond the fact that they are detained by the U.S. at Gitmo; they are not claiming that they are citizens or permanent resident aliens or "Americans" in any sense. Therefore they are not within our community and should not be treated as if they were, at least according to critics.

To be clear, I'm not saying either side is correct. But I'm not sure you're recogninzing the other side of the debate here.

Posted by: Orin Kerr | Jun 16, 2008 3:37:45 AM

I was not trying to mis-characterize the comments, and welcome your input as to where/how I did (other than just asserting as much).

No one in those comments said anything about "evildoers," for example. Though Bush does say that in his speeches about Osama bin Laden.

Fifth, Kennedy had four other votes.

Yes. And without him they would have been in dissent. The focus on him is therefore appropriate.

Finally, Jackson wasn't Chief Justice @ Nuremberg; he was lead prosecutor.

That only strengthens my point. Thanks for the correction.

"a person who has engaged in hostilities _or_ who has purposefully and materially supported hostilities against the United States or its co-belligerents . . .

And what percentage of the American population do you think that applies to? I would honestly like to know. Because that is the percentage of the American population that had to worry about random disappearings by the Bush administration.

If Jackson was so convinced that they had no right to habeas corpus simply because they were foreign belligerents outside the territorial United States, why did he devote upwards of 20 pages of the opinion to the merits of their claims?

I think Scalia's dissent ably shows how Kennedy deliberately misinterprets Eisentrager. If you have a substantive rebuttal to Scalia's critique on this particular basis, I would love to read it.

That's not an argument in and of itself, unless one believes that cases such as Printz, New York, Lopez, and Morrison are wrongly decided because there was no separation-of-powers problem

Yes, great. Except the separation-of-powers problem here -- in the national security context during an ongoing war -- is that the judiciary is arrogating power to itself that belongs to the political branches. You seem to have no argument in defense of that.


Posted by: Jack Bauer | Jun 16, 2008 3:40:10 AM

Orin -- I guess I read many of the comments differently -- as asserting that they are not part of the polity because they are "enemy combatants," which of course assumes the question. Odd though it may sound, I think the argument that _no_ non-citizen held outside the territorial United States has a right to habeas corpus is stronger than the argument that no non-citizen enemy combatant has such a right... My concern is that folks are using their (justified) antagonism toward those who actually are bad guys as an argument against process for _anyone_ who is a non-citizen held outside the U.S.

As for the harder issue, I do _see_ the other side's argument. My personal view is that the Suspension Clause is more like the provisions dealing with congressional powers than it is like those conferring individual rights, and so the analysis should differ from cases like Verdugo, et al. But I realize that not everyone agrees with me. What I was objecting to, perhaps un-eloquently, was the suggestion that, because we know these are bad guys, they should have no habeas. That's what prompted this post...

Posted by: Steve Vladeck | Jun 16, 2008 3:44:49 AM

Jack Bauer -- This is going to be my last response to you, because I think we're just talking past each other (and not entirely respectfully, at that).

First, that's just silly. I was characterizing the argument as being that the detainees aren't part of the polity, which strikes me as exactly what everyone, yourself included, has been saying.

Second, without the other four votes, Kennedy would have been awfully lonely.

Third, how, exactly?

Fourth, I don't care if it's an incredibly small percentage. Are you familiar with the case of Brandon Mayfield?

Fifth, I've already explained, ad nauseum, why I think Kennedy's analysis of Eisentrager is correct.

Sixth, you say I have no argument in defense of "that," by which I take it you mean the principle that habeas corpus is a bulwark against unlawful detention. I'm not sure how its arrogating power to claim authority granted by the Constitution. Unless you believe that the Constitution doesn't actually confer the power of judicial review upon the courts. If you do, then aren't we back where we started, i.e., whether the MCA violates the Suspension Clause? If it does, I don't see what the problem is with the Court saying so.

Posted by: Steve Vladeck | Jun 16, 2008 3:52:12 AM

What I was objecting to, perhaps un-eloquently, was the suggestion that, because we know these are bad guys, they should have no habeas

No. The argument is they aren't citizens.

Posted by: Jack Bauer | Jun 16, 2008 3:53:29 AM

Sixth, you say I have no argument in defense of "that," by which I take it you mean the principle that habeas corpus is a bulwark against unlawful detention.

That's about as loopy as your interpretation of the Constitution. As anyone can see, what I meant was you have no defense of "the judiciary arrogating power to itself that belongs to the political branches".

Posted by: Jack Bauer | Jun 16, 2008 3:56:42 AM

Fine. So which power that belongs to the political branches did the judiciary arrogate to itself?

Posted by: Steve Vladeck | Jun 16, 2008 3:59:11 AM

So which power that belongs to the political branches did the judiciary arrogate to itself?

Art. IV, sec, 3

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Posted by: Jack Bauer | Jun 16, 2008 4:11:18 AM

Process is an euphemism for lawyer employment. There is no evidence it promotes accuracy. The aim of Boumedienne was to insure lawyer employment. The Court would risk terror attacks to get more lawyer jobs.

Posted by: Supremacy Claus | Jun 17, 2008 11:27:02 AM

If there is no evidence that "process promotes accuracy," then why don't we do away with process altogether? Let's get rid of criminal trials, hearings before taking away benefits, hearings before locking people in psych wards. In fact, why even have trials in contract disputes? The whole idea of a system in which we are governed by laws rather than men is one giant con game. Let's go back to leaving all decisions in the hands of a beneficient, all-powerful monarch.

You can think that the statute provided enough process or that--by some quirk of our Constitutional language and history--we are not required to provide process to these particular individuals, but an attack on the notion that procedural protections themselves are ever a good thing is either intentionally demagogic hyperbole, bizarrely ignorant, or scary dangerous.

Posted by: Andrew Siegel | Jun 17, 2008 1:17:11 PM

Validate process scientifically. Most of it is Medieval in origin, and nothing from 1250 AD is remotely acceptable in use today. The reason this persists is the self-dealt immunity of the lawyer and judge profession. They are incompetents with immunity.

Process is in utter failure, except for lawyer rent seeking. It oppresses and fails. In the case of the criminal law, the criminal is a commodity in 95% of cases, with no process, bandied about by insiders, more loyal to each other than to anything else. Then, incompetent criminal procedure allows 23 million crimes a year. When the works is thrown at process, as in a death penalty case, after spending $1 million on pretextual lawyer make work and worthless paper shuffling, the false positive rate is around 20%. In no other endeavor would a 20% failure rate be acceptable, as in only 80% of cars purchased can be started. Only 80% of your deposit can be retrieved from the bank. Only 80% of flights land safely at their destination.

Tyrannical, incompetent, in utter failure from every angle, self-dealing, rent seeking at the point of a gun, and totally immune from accountability. That is the Boumedienne, and almost all common law invented bogus criminal procedure. By rare accident, procedure works, as with the sentencing guidelines, after they cut crime in half. The procedure is immediately repealed by unauthorized, pseudo-legislative command of rent seeking little Caesars on the bench. These lawyers all live in low crime neighborhoods.

Posted by: Supremacy Claus | Jun 17, 2008 2:03:40 PM

Washington Post-ABC News Poll:

13. The U.S. Supreme Court has ruled that non-citizens suspected of terrorism who are being held in Guantanamo Bay, Cuba, should be allowed to challenge their detentions in the U.S. civilian court system. (Supporters of this ruling say it provides detainees with basic constitutional rights.) (Critics of the ruling say only special military tribunals should be allowed, because hearings in open court could compromise terrorism investigations.) What's your view - do you think these detainees should or should not be able to challenge their detentions in the civilian court system?

Should Should not No opinion
6/15/08 34 61 6

It appears it is the American people who are "afraid" of a little process.

Posted by: Oliphant | Jun 17, 2008 7:56:04 PM

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