Al-Bihani, "Common-Law" Habeas, and a Plug for an AALS Panel

If you have a chance, it's worth reading today's D.C. Circuit opinion in Al Bihani v. Obama, by far the most important decision vis-a-vis Guantanamo from a federal court in the almost 19 months since Boumediene. Lyle Denniston already has a thorough summary here, and Deborah Pearlstein has some thoughts on, inter alia, the hard-to-follow (if not non-sensical) international law discussion here.

I wanted to write separately, though, to flag Judge Brown's separate (and solo) concurrence. Although there have been suggestions almost since Boumediene that Congress should get more involved in these cases by providing clearer substantive and procedural rules to govern habeas petitions brought by detainees (e.g., this op-ed by Ben Wittes and Jack Goldsmith), Judge Brown seems to think that there is little for courts to do in the interim--that "common law habeas" is not the appropriate forum within which to have these rules articulated by courts.  First, there is this passage on page 1 of her opinion:

it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. The common law process depends on incrementalism and eventual correction, and it is most effective where there are a significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple. None of those factors exist in the Guantanamo context. The number of Guantanamo detainees is limited and the circumstances of their confinement are unique. . . . And, in the midst of an ongoing war, time to entertain a process of literal trial and error is not a luxury we have.

Then, there is this passage on page 2:

War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.

To me,there is an enormous difference between the normative desirability of having Congress legislate here and the role the courts should play in the absence of legislation. Unless Boumediene is wrong -- and the D.C. Circuit is hardly in a position to say that it is -- then I think it's clear that the Constitution requires the courts to do what the D.C. district court has spent the last year and a half doing, and that, absent more specific legislation, courts have both the ability and the responsibility to balance the rights of the detainees with the government's national security concerns.

Put differently, while I think we can all have different views about whether the district courts have been getting the answers right in the post-Boumediene cases, and on whether we'd be better off with clearer statutory rules from Congress, we have the hand that we've been dealt. What is the alternative here? No judicial review for anyone? There is a lot about today's majority opinion that is, in my view, incorrect. But Judge Brown's concurrence is, to me, dangerous and myopic. What's the point of having habeas corpus at all if it's not up to courts to fill in the gaps left by the political branches?

All of this leads me to a plug for one of the three panels I'll be participating in at AALS: Friday afternoon, from 4 to 5:45 p.m., the Section on Legal History is holding a session on "Habeas Corpus: The Enduring Issues." In particular, one of my favorite scholars -- Eric Freedman from Hofstra -- and I will be presenting new work we've both been doing on habeas's history, with Bob Cottrol from George Washington moderating. Both Eric and I plan to explain the relationship between some of the new history being written (especially by Eric and by Paul Halliday at UVa) and the contemporary cases, and I suspect Al-Bihani will now get added to the mix as well. Not to give too much away, but I think it is safe to say that Eric and I both believe that "common law" habeas is a critical part of our constitutional system, and one that has been neglected by courts and commentators largely because of fortuitous circumstances that, until recently, rendered it unnecessary