Detention Policies: What Role for Judicial Review?
By Stephen I. Vladeck and Greg Jacob
Editor’s note: Professor Stephen I. Vladeck of the Washington College of Law at American University and Greg Jacob, a partner at O’Melveny & Myers in Washington, D.C., examine the intricacies of U.S. detention policy. Their essays are among those collected in Patriots Debate: Contemporary Issues in National Security Law, a book published by the ABA Standing Committee on Law and National Security that was edited by Harvey Rishikof, Stewart Baker and Bernard Horowitz. The book can be ordered online. This is the eighth and final installment of our Patriots Debate series.
“The restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. … Nevertheless, my administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”
—President Barack H. Obama, signing statement on H.R. 6523 (the National Defense Authorization Act for 2011), Jan. 7, 2011
“The transfer of [detainees to the United States] directly contradicts congressional intent and the will of the American people. … Congress has spoken clearly multiple times—including explicitly in pending legislation—of the perils of bringing terrorists onto U.S. soil. It is unacceptable that the administration notified Congress only after it unilaterally transferred [Ahmed Warsame] to New York City despite multiple requests for consultation.”
—Rep. Howard “Buck” McKeon (R.-Calif.), July 5, 2011
STEPHEN I. VLADECK’S POSITION:
American University law professor Stephen Vladeck, also senior editor of the Journal of National Security Law and Policy.
Writing for a divided panel of the U.S. District Court for the District of Columbia Circuit in Latif v. Obama (2011), Judge Janice Rogers Brown openly criticized the U.S. Supreme Court’s decision in Boumediene v. Bush, which held that the Constitution’s suspension clause entitles noncitizens detained at Guantanamo to meaningful judicial review of the legality of their ongoing confinement. In her words: “Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.”
Judge Brown’s rhetoric provides a useful lens for thinking about the future of U.S. detention policy, for it can fairly be seen as suggesting that the Supreme Court’s various interventions into detainee policy in the war on terrorism have been directly responsible for the “shrinking category of cases” arising out of Guantanamo and the related reality that “the ranks of Guantanamo detainees will not be replenished.” Put another way, faced with the specter of judicial review, Latif suggests that the Bush and Obama administrations were compelled to resort to other measures for handling terrorism suspects, whether detention at other overseas locations (to which the suspension clause might not run), indictment and trial by civilian U.S. courts, or more lethal forms of incapacitation—including targeted killings. Indeed, if Judge Brown is right, then the result would be profoundly unsettling: The true lesson of the past decade with regard to military detention is that judicial review is ultimately self-defeating, provoking responses by the political branches that largely eliminate the need for (or availability of) judicial review in future cases.
The short chapter that follows aims to take Judge Brown’s suggestion seriously. As I explain, although Judge Brown is clearly correct that judicial review has affected the size of the detainee populations within the territorial United States and at Guantanamo, it does not even remotely follow that the jurisprudence of the past decade has precipitated a shift away from detention and toward targeted killings. To the contrary, the jurisprudence of Judge Brown’s own court has simultaneously (1) left the government with far greater detention authority than might otherwise be apparent where noncitizens outside the United States are concerned; and (2) for better or worse, added a semblance of legitimacy to a regime that had previously and repeatedly been decried as lawless. And in cases where judicial review prompted the government to release those against whom it had insufficient evidence, the effects of such review can only be seen as salutary. Thus, at the end of a decade where not a single U.S. military detainee was freed by order of a federal judge, it is more than a little ironic for Judge Brown to identify “take no prisoners” as Boumediene’s true legacy.
Read all the articles in the Patriot Debate series:
NATIONAL SECURITY LETTERS
The role of judicial review in the three post-9/11 military detention cases in which the detainees were held within the territorial United States is impossible to overstate. Despite the Bush administration’s initial position that the detention of “enemy combatants” posed a nonjusticiable political question, the federal courts (and the Supreme Court, in particular) were emphatic in suggesting that such detentions were subject to judicial review, even as they divided over the merits in each of the three cases.
Thus, in the case of Yasser Esam Hamdi, the federal government argued to the Supreme Court that “some evidence” was sufficient to justify the long-term detention of U.S. citizens captured on the battlefield. Although the court agreed that the government had the authority to detain individuals like Hamdi, it disagreed as to the evidentiary burden, with a 6-1 majority concluding that a more rigorous evidentiary burden was necessary. Rather than attempting to provide such evidence on remand, the government quickly entered into an agreement with Hamdi wherein he agreed to relinquish his citizenship in exchange for his release and transfer to Saudi Arabia.
In the case of Jose Padilla, although the Supreme Court initially threw out Padilla’s habeas petition in 2004 on the ground that he had filed in the wrong district court, the opinions in the contemporaneous Padilla and Hamdi decisions left the distinct impression that, on the merits, five justices would have rejected the argument that the 2001 Authorization for the Use of Military Force authorized the detention of U.S. citizens arrested within the territorial United States. Padilla refiled in the proper venue, only to have the government moot the case on the eve of Supreme Court review by indicting him on criminal charges and transferring him to civilian custody. As Fourth Circuit Judge J. Michael Luttig observed, the timing of the government’s conduct gave rise “to at least an appearance that the purpose of these actions may be to avoid consideration of our decision [upholding Padilla’s detention] by the Supreme Court.” Nevertheless, and over three dissents, the court denied certiorari.
That pattern repeated itself in the case of Ali al-Marri (the one noncitizen subjected to military detention within the territorial United States), with the Obama administration mooting the merits of his detention after the Supreme Court granted certiorari by indicting him on criminal charges and transferring him to civilian custody. Thus, in all three cases, the specter of future judicial review—in the district court in Hamdi and in the Supreme Court in Padilla and al-Marri—directly led to a change in policy, and there have been no additional stateside military detention cases since.
At least based on the public record, one can only make an inferential case that this pattern was repeated with regard to Guantanamo, but the circumstantial evidence is fairly compelling. Although 779 noncitizens were at one time detained as “enemy combatants” at Guantanamo, the detainee population dropped from 597 at the time of the Supreme Court’s Rasul decision in 2004 to 269 at the time Boumediene was decided, and from that number to the 171 men detained there today. And although none of the 600 detainees who have been released from Guantanamo were directly freed by a judicial order, it stands to reason that the sharp uptick in the rate of transfers out of Guantanamo (along with the virtual cessation of transfers in) after June 2004 was a direct reaction to, and result of, the court’s decision in Rasul v. Bush, which held that the federal habeas statute extended to Guantanamo. Moreover, in the four years since Boumediene, there have been at least 11 distinct district court decisions granting habeas relief that the government declined to appeal on the merits. Not all of the detainees at issue in those cases have been released, but those that were certainly weren’t hurt by the judicial proceedings on their behalf.
Inasmuch as the detainee litigation appears to have exerted hydraulic pressure on the executive branch to reduce the detainee population at Guantanamo, it has arguably also invested the detentions in the cases that remain with at least a modicum of legitimacy—at least for those detainees who have not been cleared for release. After all, the government now is able to argue that the detainees still at Guantanamo have received the exact judicial review called for by the Constitution; the fact that the courts have denied relief in many of those cases only underscores the validity of that aspect of the U.S. detention regime in the short term (and perhaps in the long term as well).
Far less data exists to evaluate the relationship between judicial review and the number of detainees held by the United States in Afghanistan. Here, though, the data is less important than the case law. Notwithstanding Boumediene, the D.C. Circuit held in al-Maqaleh v. Gates that noncitizens detained in Afghanistan, even if they are not citizens of or arrested in Afghanistan, are not entitled to pursue habeas relief in the U.S. federal courts. In so holding, the appeals court specifically rejected the detainees’ argument that judicial review must be available lest the government deliberately choose to send new detainees to Afghanistan to escape judicial oversight: “The notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to ‘turn off the Constitution’ would have required the military commanders or other executive officials making the situs determination to … predict the Boumediene decision long before it came down.
Because Maqaleh means that judicial review will not extend to Afghanistan absent a showing of deliberate manipulation on the government’s part (and perhaps not even then), the conclusion appears manifest that Boumediene’s holding is limited to Guantanamo, and that the government in fact does not face the prospect of judicial review in future cases involving the detention of noncitizens elsewhere outside the territorial United States. As such, Judge Brown’s suggestion in Latif that Boumediene has chilled (and will chill) future military detentions of terrorism suspects necessarily fails to persuade. At least for noncitizens picked up outside the territorial United States, Maqaleh preserves substantial flexibility on the government’s part and leaves judicial review as an unlikely proposition, at best.
But there’s another aspect to the jurisprudence of the past decade that also poses a stark contrast with Judge Brown’s reasoning: thanks to the work of Brown and her colleagues on the D.C. Circuit, even in cases in which judicial review does apply, the relevant substantive and procedural standards governing such review leave the government with sweeping authority. With regard to noncitizens outside the territorial United States, current case law requires the government to show merely by a preponderance of the evidence (i.e., that it is more likely than not) that the detainee was “part of” or “substantially supported” al-Qaida. And thanks to Latif (the very decision in which Judge Brown objected to Boumediene), intelligence reports are treated with a presumption of regularity—making it incredibly difficult as a practical matter for detainees to overcome the government’s evidence. In point of fact, there has not been a single case to date in which the D.C. Circuit either affirmed a district court’s grant of habeas relief or reversed the denial thereof. Given the government’s successful track record before Judge Brown and her colleagues, it’s that much harder to understand her claim that “the systemic cost of defending detention decisions” has dissuaded the government from doing so. If the litigation of the last few years has suggested anything with regard to the future of U.S. detainee policy, it is that the cost to the government of defending detention decisions in the D.C. Circuit is not particularly high, especially compared to the benefit that such review has provided.
GREG JACOB’S COUNTERPROPOSAL:
Gregory Jacob is a partner at O’Melveny & Myers in D.C.
In arguing that the Supreme Court’s decision in Boumediene v. Bush has not “precipitated a shift away from detention and toward targeted killings,” Professor Vladeck knocks down an easily-dispensed-with straw man, but fails to tackle the more interesting question of whether the D.C. Circuit’s post-Boumediene jurisprudence has struck the right balance in establishing parameters for judicial review of executive branch decisions concerning the detention of captured enemy combatants. This short article suggests that, in at least two significant respects, it has. First, the D.C. Circuit’s decision in Maqaleh v. Gates avoids disruptive litigation over the military detention of most aliens who are (1) captured abroad, (2) designated by the military as enemy combatants and (3) held in a theater of active military operations. Second, the evidentiary burdens and presumptions applied by the D.C. Circuit in reviewing the habeas petitions of Guantanamo detainees have, by and large, struck an appropriate balance between the “practical considerations and exigent circumstances” of needing to avoid “judicial interference with the military’s efforts to contain ‘enemy combatants [and] guerilla fighters,’ ” on the one hand, and the need to “protect against the arbitrary [and unlawful] exercise of governmental power” on the other.
Captured enemy combatants, whether lawful or unlawful, are not detained for the purpose of punishment, but rather to prevent them from rejoining enemy forces and engaging in further hostilities. Such detention authority is no less necessary in a guerilla war against covert terrorist elements than it is in large-scale conventional conflicts. If our military forces are competent—and they certainly are—circumstances will arise in which hard-pressed enemy forces will elect to lay down their arms and voluntarily surrender. And if we as a people are both moral and merciful—and we strive to be—rather than kill the surrendered enemy, we will instead offer to detain them.
But what then? The Supreme Court’s decisions in Ex parte Quirin and Johnson v. Eisentrager, together with long-standing historical practice, establish the government’s authority to hold captured enemy combatants until the end of an armed conflict to prevent them from rejoining the fray and attempting to kill our forces. But does this well-established rule apply without limitation in an armed conflict that had no natural end? On the one hand, releasing an avowed enemy of the United States, whose hatred of our country can only have been inflamed by years of detention, and without any firm assurance that he or she will not seek to engage in future hostilities against us, seems the sheerest of folly. On the other hand, if it will never be assuredly safe to release such individuals, can we really preventively detain them indefinitely, possibly for decades, and perhaps even until the end of their natural life? Historical and legal precedents have almost all described the government’s authority to detain enemy combatants in absolute terms, but those precedents have seemed to assume that the underlying conflicts would eventually end, and that the government’s detention authority would thus come to a natural close.
In the early cases related to the war on terror, the government subscribed to the absolute theory of detention authority that flowed from these precedents. And in the Supreme Court’s first examination of a war on terror case, Hamdi, it agreed, holding that “universal agreement and practice” support the military’s authority to capture and detain individuals who are “part of or supporting forces hostile to the United States … and engaged in armed conflict against the United States.” The Supreme Court expressly noted that the purpose of such detention is to prevent enemy combatants from “returning to the field of battle and taking up arms once again,” stating that combatants can accordingly be held “for the duration of the relevant conflict.”
More than a decade into the war on terror, no federal court has seriously called into question the government’s potentially unending authority to detain captured combatants until the conflict “ends.” Whether there are or should be any temporal limitations to that authority is a question that future judges and political leaders may well address. Boumediene, however, demonstrates the judiciary’s concern that as the war on terror drags on, and with it the length of ongoing detentions (at the time of the Boumediene decision, some of the detainees had been held for more than six years), we need to at least be increasingly sure that the individuals we are detaining are in fact enemy combatants. Boumediene expressly declined to state how greater certainty concerning the validity of military detentions should be achieved, noting that “our opinion does not address the content of the law that governs [enemy combatant] detention” and directing the lower courts to establish a framework capable of reconciling “liberty and security … within the framework of the law.” This is what the D.C. Circuit has attempted to do.
Probably the most important war on terror decision handed down by the D.C. Circuit since Boumediene was decided is Maqaleh, in which the court declined to extend the writ of habeas corpus to aliens captured abroad, designated enemy combatants and held at Bagram Air Force Base in Afghanistan. From the military’s perspective, the nightmare scenario has always been the prospect that the judiciary would assert the right to engage in a searching inquiry into the basis for every capture and detention of an alien abroad, even while active combat operations are ongoing. In World War II, such a rule could have required the government to litigate hundreds of thousands of habeas claims, costing the government significant expense and causing substantial disruption to military operations. Maqaleh puts such fears to rest.
In declining to exercise habeas jurisdiction over Bagram, the Maqaleh court did not apply a bright-line territorial sovereignty test, but rather engaged in a multi-factor analysis drawn from Boumediene that examines (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made, (2) the nature of the site of apprehension and the site of detention, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. The essential holding of the case seems to be that where the government apprehends an alien abroad, and then detains that alien at a location not within the de jure or de facto sovereignty of the United States and within an active theater of war, the writ of habeas corpus does not apply. There may be exceptions to this rule where the government has not engaged in any formal process for determining whether detained individuals are legitimately classified as enemy combatants, or where the government has deliberately transferred prisoners to an active theater of war for the purpose of avoiding habeas jurisdiction. Otherwise, however, Maqaleh requires the judiciary to exercise some humility and defer to most military detention decisions in active theaters of war.
Does the Maqaleh rule create the possibility, and perhaps even the likelihood, of erroneous detentions? Certainly. Mankind has not yet devised a perfect system for correcting such errors. But the decision is founded on a principle long recognized by the courts: That absent extraordinary circumstances, the cost to security of judicial interference in active overseas military operations outweighs the liberty cost of potentially erroneous detentions pursuant to those operations. Thus, five years after World War II formally ended, the Supreme Court declined to extend the writ of habeas corpus to prisoners held in Germany, explaining that “such trials would hamper the war effort and bring aid and comfort to the enemy. … It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.” Through Maqaleh, these legitimate concerns continue to govern the enemy combatant jurisprudence of today.
The law developed by the D.C. Circuit for reviewing enemy combatant habeas petitions is perhaps more important for its symbolic than its practical effect, as the government has stopped transferring detainees to Guantanamo Bay, and the number of individuals to which the body of law applies is thus small and shrinking. Nevertheless, we are a nation that prizes liberty, fairness and the rule of law, and the Boumediene court may well have been correct that outside the theater of war, the liberty cost of potentially erroneous detentions must under some circumstances outweigh the security costs attendant to habeas review.
The key question in a habeas inquiry concerning a captured enemy combatant is not whether the individual committed a crime, but whether the government properly designated the individual an enemy combatant. This inquiry requires review of highly classified intelligence reports, which often contain hearsay statements gathered from a variety of intelligence sources. The D.C. Circuit has established that hearsay evidence is admissible in detainee review cases (al-Bihani v. Obama), that the recording of hearsay statements by government agents is entitled to a presumption of regularity, but not to a presumption that the recorded hearsay statements are actually true (Latif), that the various items of evidence used by the government to support a detention must be viewed by a reviewing court as a whole, rather than in isolation (Salahi v. Obama), and that a governmental showing by a preponderance of the evidence is sufficient to support a detention (Bihani). These standards, which have for the most part gained the support of judges across the D.C. Circuit’s ideological spectrum, are both flexible and fair, ensuring that detainees are not held at the whim of the executive and with no supporting evidence, while recognizing that judicial review of military detentions requires some reasonable alterations to the habeas standards to which we are more accustomed.
Professor Vladeck misreads the import of Judge Brown’s dicta in Latif. Boumediene’s message to the government, understood through the lens of the D.C. Circuit’s post-Boumediene jurisprudence, is not “take no prisoners.” Rather, it is “don’t transfer prisoners to Guantanamo Bay or the territorial United States”—or, to use Judge Brown’s own words, “the ranks of Guantanamo detainees will not be replenished.”
The government created the detention facility at Guantanamo Bay so that it would have a secure location, not easily susceptible to prison breaks or the vagaries of war, at which high-value detainees could be securely held and mined for intelligence. Now that the Supreme Court has determined that keeping captured enemy combatants at Guantanamo will subject the government to the vagaries of habeas litigation, the usefulness of the facility has been substantially diminished. That does not mean, however, that the military has been incentivized to switch from capturing enemy combatants to killing them. Rather, it means that in the future the military will simply keep detainees where it captures them, preferring the risk of prison breaks and enemy attacks to the certain cost and disruptions to intelligence-gathering that are inevitably caused by repeatedly being dragged into court.
STEPHEN I. VLADECK’S REBUTTAL:
Irony pervades Greg Jacob’s hortatory defense of the current state of the D.C. Circuit’s jurisprudence regarding U.S. detainee policy. On the one hand, Jacob sings the praises of the Court of Appeals for adopting standards that are “flexible and fair” in the Guantanamo cases, and for “ensuring that detainees are not held at the whim of the executive and with no supporting evidence, while recognizing that judicial review of military detentions requires some reasonable alterations to the habeas standards to which we are more accustomed.” Never mind that the D.C. Circuit has yet to rule on the merits in favor of a single detainee (and has repeatedly reversed grants of habeas relief by the district court), or that its jurisprudence has in various places manifested thinly veiled—if not downright overt—hostility to the Supreme Court’s decision in Boumediene. From Jacob’s perspective, one can look to the work of the D.C. Circuit with respect to Guantanamo as striking the “appropriate balance” between the government’s compelling interests and the rights (such as they are) of the detainees—and more generally as a model for how courts should approach “the vagaries of habeas litigation.”
And yet, at the same time, Jacob praises the D.C. Circuit for virtually foreclosing judicial review of the detention of noncitizens anywhere else in the world in Maqaleh v. Gates, suggesting that, “absent extraordinary circumstances, the cost to security of judicial interference in active overseas military operations outweighs the liberty cost of potentially erroneous detentions pursuant to those operations.” Jacob offers no evidence of the “cost to security of judicial interference in active overseas military operations,” nor does he proffer any explanation for why the D.C. Circuit wouldn’t approach such detentions with equal (if not greater) deference to the government’s interests—for why the same approach he celebrates in one part of his essay doesn’t suggest that judicial review would not be disruptive elsewhere. Instead, it’s enough merely to assert that “Maqaleh requires the judiciary to exercise some humility and defer to most military detention decisions in active theaters of war.”
Of course, even this conclusion marginalizes the most relevant fact in Maqaleh—that none of the three petitioners were actually seized in an “active theater … of war.” Instead, the government chose to move the detainees into a theater of active combat operations for the purpose of detention. The D.C. Circuit held that this point was irrelevant to the availability of habeas unless the detainees could prove that the government’s purpose in so moving them was to avoid judicial review. But logically, if the government’s true goal was to avoid judicial interference with active combat operations—rather than to avoid judicial review regardless—moving the detainees into an active theater of war seems a rather odd decision, to say the least.
Reasonable minds may well disagree about the result in Maqaleh. The larger question that I’m left with after Jacob’s response, though, is why we should be so afraid of judicial review. After all, no one has identified a single example in the Guantanamo litigation in which classified information was improperly disclosed by a detainee’s counsel. Add that to the fact that the government has prevailed in every case in which it appealed a district court’s grant of habeas relief or in which the detainee appealed the denial. Taken together, these points bespeak a record in which judicial review has done exceedingly little to jeopardize the government’s interests. Indeed, it may have had the opposite effect, as I described in my initial contribution, of lending legitimacy to our detention program both at Guantanamo and elsewhere. At minimum, it has had the salutary effect of requiring the government to make its case before a neutral magistrate, something that, in the case of an overwhelming majority of the men who have since been released from Guantanamo, it declined to even attempt.
Ultimately, I suspect Jacob and I will have to agree to disagree when it comes to the rationales that the D.C. Circuit has employed in reaching these results, and perhaps even with regard to some of the results themselves. But at least based on the existing record, it strikes me as little more than a canard to conclude that we should accept “the likelihood … of erroneous detentions” outside Guantanamo as a necessary evil because judicial review endangers our safety and security. If there is one lesson of which we should take particular heed for detainee policy going forward, it is that judicial review has done no such thing.
GREG JACOB’S CLOSING:
Professor Vladeck simply cannot imagine how judicial review of military detentions, even in active theaters of war, could possibly disrupt the government’s war efforts. If the courts order that detainees be released, then judicial review was clearly necessary to correct erroneous detentions. And if the courts do not order that detainees be released, then what does the government have to complain about? By this standard, judicial review of military detentions is always justified, without regard to cost or outcome.
But of course, this standard does not measure the true cost of judicial review. It must be remembered that the kind of judicial review at issue here was not carefully constructed and balanced by our political leaders, but rather was imposed by the courts as a matter of constitutional requirement. The war on terror and the wars in Afghanistan and Iraq are wars of choice waged against vastly outmatched opponents, but constitutional requirements apply equally during wars of necessity in which the nation’s very survival is at stake. We held hundreds of thousands of prisoners of war during the Civil War and World War II—how is Professor Vladeck’s expansive judicial review supposed to be administered under such circumstances without seriously compromising our security interests? No practicable answer is even remotely suggested in my sparring partner’s essay.
Until the new kind of war presented by the war on terror came along, the courts uniformly recognized that war is a matter best handled by the political branches, and that at least in active theaters of combat operations, the judiciary should stay out. That is why the D.C. Circuit’s decision in Maqaleh is so important: It recognizes there are times and places in which the substantial costs in time, energy and resources that necessarily accompany the judiciary’s error-correcting function simply aren’t worth it, and to which the framers accordingly never intended to extend constitutional habeas protections. To be sure, the circumstances in which constitutional habeas protections do not apply are carefully circumscribed; U.S. citizens, for example, will always be entitled to habeas review. And after Boumediene, most if not all aliens detained domestically will be as well. But within that narrow sphere from which the judiciary has been excluded—and has by and large accepted its exclusion—the time, energy and resources at stake can be a matter of life or death for our troops, and for the nation as a whole.
Professor Vladeck does not believe the stakes could possibly be so high. And in a war of choice in which only a few hundred detainees being held an ocean away from the front lines are permitted access to our courts, perhaps they are not. But how could the military possibly have defended hundreds of thousands of habeas petitions in the midst of World War II? With the witnesses to captures primarily being front-line soldiers still engaged in fighting, should we pull half of Easy Company out of Operation Market Garden to type up detention affidavits? With military intelligence attempting to secure mission-critical information that could turn the tide of war, should we allow their operations to be chilled and disrupted by a stream of discovery requests? And having disarmed enemy troops on the battlefield and placed them in detention camps where they can do no further harm, should we rearm them with legal causes of action that will consume significant time and manpower to defend, and further provide them a public platform from which to denounce the United States? In light of these costs and disruptions, it is unsurprising that the Geneva Conventions, for example, do not even hint at any kind of judicial review requirement for the ordinary detention of military prisoners.
Will mistakes be made in war, including erroneous detentions? Certainly. Would robust judicial review correct those errors? Some of them, probably. Courts are no more infallible than military review boards, however, and the fact that the D.C. Circuit has overturned every award of habeas relief the government has appealed shows that courts get it wrong plenty of the time, too—having reached opposite conclusions in those cases, the district court and the court of appeals cannot both be right. In the end, however, Professor Vladeck simply presents no evidence that the D.C. Circuit’s habeas review procedures have failed to provide adequate error correction for the Guantanamo detainees, or that the expected benefits of extending such review to active theaters of war would outweigh the attendant costs.
Professor Stephen I. Vladeck of the Washington College of Law at American University and Greg Jacob, a partner at O’Melveny & Myers in Washington, D.C., examine the intricacies of U.S. detention policy. Their essays are among those collected in Patriots Debate: Contemporary Issues in National Security Law, a book published by the ABA Standing Committee on Law and National Security that was edited by Harvey Rishikof, Stewart Baker and Bernard Horowitz. The book can be ordered online. Vladeck was part of the legal team that successfully challenged the Bush administration’s use of military tribunals in 2006’s Hamdan v. Rumsfeld. He also is a senior editor of the peer-reviewed Journal of National Security Law and Policy. This is the eighth and final installment of our Patriots Debate series.
Professor Stephen I. Vladeck of the Washington College of Law at American University and Greg Jacob, a partner at O’Melveny & Myers in Washington, D.C., examine the intricacies of U.S. detention policy.
Their essays are among those collected in Patriots Debate: Contemporary Issues in National Security Law, a book published by the ABA Standing Committee on Law and National Security that was edited by Harvey Rishikof, Stewart Baker and Bernard Horowitz. The book can be ordered online.
Vladeck was part of the legal team that successfully challenged the Bush administration’s use of military tribunals in 2006’s Hamdan v. Rumsfeld. He also is a senior editor of the peer-reviewed Journal of National Security Law and Policy.
This is the eighth and final installment of our Patriots Debate series.
Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution. Lino wrote:
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. [MR note: does Graglia mean explicitly or explicably?] It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common. It obviously supports nonoriginalism. If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.
But judicial review is not just made up. In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution. But, even more importantly, judicial review has a strong basis in the constitutional text. While I cannot go review all of the arguments, I will try to hit the high points.
First, the Supremacy Clause expressly states that a form of judicial review exists:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Clearly, this is stating that state court judges must apply the Constitution rather than state statutes. Thus, Graglia’s apparent claim that judicial review is not expressly in the Constitution is mistaken as to judicial review of state laws, and Graglia’s essay clearly indicates that he has such judicial review of state laws in mind.
But the constitutional text also supports judicial review of federal statutes. This occurs in a number of different ways. First, at the time of the Constitution, constitutions were thought to take priority over statutes. Second, judges would also have a role in determining that a statute conflicted with the constitution (as opposed to the alternative possibility that the Congress would have the exclusive power to make that determination). In the case of state statutes, the Constitution itself recognized that state courts would make the determination that the state statute conflicted with the Constitution (rather than state legislatures making the determination). So the same rule would make sense as to federal statutes. In addition, the Constitution proclaims itself law, which also suggests that judges should interpret it as they interpret other laws. Further, the Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land.” That suggests that only federal statutes consistent with the Constitution are supreme law of the land. This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted it in that way. See footnote 76 of this paper.
Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).
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