Commentary

Just one year ago, on January 22, President Obama issued a White House directive.  A key sentence in it read: “The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order.”  That date has arrived, and, as is now widely understood, the U.S. military prison in Cuba for foreign national captives suspected of terrorism ties may not be closed for many more months, if then.  Some in Congress, in fact, want it to remain open indefinitely.

In the meantime, the fate of the detainees there — now numbering a few less than 200 — is being worked out largely in response to a Supreme Court decision that was issued seven months before the new President made his vow to shutter Guantanamo.   A case-by-case process — with the Executive Branch on one side, detainees’ lawyers on the other, and fifteen federal district court judges in the middle — is the main mechanism for working out who stays at Guantanamo, and who leaves.  The failure to empty the Guantanamo prison, and the process unfolding in the courts (a process that has sometimes frustrated both sides and the judges), has produced a number of policy debates in Washington.  But now, on the anniversary of the President’s promise, one debate topic is rising to prominence: should the whole thing be handed over to Congress. to lay down some rules and guidance?

There are some close observers of detention policy and practice who have concluded that the courts simply cannot handle — or cannot handle well — the task handed to them by the Supreme Court decision in Boumediene v. Bush.  Those observers, in various forums (books, newspaper columns, seminars, scholarly studies), have been trying to make the case for a legislative solution.  One of the most energetic proponents of that approach is a Brookings Institution scholar, Benjamin Wittes.  Lately, his basic point has been drawing support from some federal judges themselves.

Now, on the anniversary of the Obama directive, both Wittes and some of the federal judges are intensifying the debate.

Wittes, joined by University of Texas law professor Robert M. Chesney (who also has an affiliation with Brookings), released on Thursday a new study of how the federal judges have been processing the detainee cases.  The full text of the report is here.  It examines cases that federal judges have resolved, and draws some conclusions, suggesting that the process has been “a struggle,” has failed to resolve key issues, or has produced such fundamental disagreement that little, if anything, is clear about the scope of detention authority they have articulated.

The orientation of the study is clear from its very first page.  In the opening paragraph, the authors write that what is going on in the District Courts is “the chief legislative mechanism” for developing detention policy.  In the third paragraph, they call the process a “peculiar delegation of a major legislative project to the federal courts.”  And, before applying those labels, the authors lamented that the President has decided not to ask Congress for a new law on the subject, and, in any event, Congress has “a lack of interest in the task.”  A little later on, they openly confess their “significant concerns about the habeas process as a lawmaking device” — a comment that, by referring to it as “lawmaking,” further fostered the impression that habeas judges are doing Congress’s work.

It thus is apparent that this study proceeds from a strong hint of institutional illegitimacy.  Never mind that what is actually happening is that a constitutional ruling by the Supreme Court, giving Guantanamo detainees a right to pursue the ancient legal writ of habeas corpus under a statute that dates back to 1789 (and a heritage that goes back to 1215 and Runnymede), is being interpreted and applied as judges always do when the Supreme Court makes a declaration.  The Court did not tell the judges chapter and verse to how to do the task, but it is entirely clear that the Justices trusted that the trial judges could and would do it, and quite well.

The fifteen judges, in quite remarkable bursts of creativity that is entirely judicial in character (partly in response to even more legal creativity by squads of volunteer lawyers), have been deciding which individuals are entitled to be freed from Executive Branch detention, and which are not.  That, of course, is what habeas has always been about: justify the detention of a particular individual, or let him go.

The discrete facts of the forty-plus cases so far decided have only a little in common, and the actual judicial outcomes have differed, mainly because of the variations in the facts but also, to a degree, because the judges have interpreted detention authority from differing perspectives (though it is easy to exaggerate the differences in the standards they have spelled out, and the Wittes/Chesney study does so).

In reality, each of the judges has started with a piece of legislative guidance that Congress laid down just shortly after the September 11, 2001, terrorist attacks.  That guidance came in a quite loosely worded enactment, originally having nothing to do with detention authority: the Authorization for the Use of Military Force (or AUMF).  It is the only source of law on which the Obama Administration has relied in claiming the authority for long-term detention of terrorism suspects without charging them with a crime.  (The Bush Administration had another claimed source — “inherent” Executive power — but the Obama Administration has explicitly forsaken that.)

One must take seriously the Wittes/Chesney claim that “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.”  Even so, the analysis is clearly filtered through the underlying orientation of the authors, and their very real discomfort with the judicial method for resolving difficult legal issues.

Not one of the fifteen judges working on detainee cases since the late summer of 2008, but most diligently since the late fall of that year after some common procedural issues were worked out by Senior District Judge Thomas F. Hogan, has shown any doubt that the task is, indeed, very difficult.  There is little to go on, except a few World War II Supreme Court precedents, and the judges differ in how they read those precedents.  There is also, of course, the AUMF, but it is such an open-ended congressional endorsement of potential anti-terrorism responses that no two lawyers or judges who read it can agree exactly on its essential scope.

And some of the judges, it is now clear, are quite uncomfortable with the difficulty they have encountered.  One judge on the D.C. Circuit Court, Janice Rogers Brown, took the occasion of that Court’s first ruling on an actual Guantanamo detention decision to call on Congress to step in to provide some guidance.  (That judge, of course, had no difficulty in drawing a very explicit judicial conclusion: international law plays no role in determining whether a Guantanamo detainee can be held or must be released.)

Judge Hogan himself has said he would appreciate some guidance from Congress.  And now, three of his colleagues on the district bench have given press interviews to express their desire for some help from Capitol Hill.  (Their interviews, given to a news entity, ProPublica, are recounted here.)

The judges, of course, have faced frustrations in trying to apply Boumediene.  One of the greatest is that the process of getting information from the Executive Branch, to justify detentions, has often met with heavy resistance.  It has not been uncommon for the judges to display publicly their impatience with the responses, particularly, of government intelligence agencies and the Pentagon.  Another frustration is that the trial judges have had very little expectation that their handiwork on habeas would survive appellate review in the D.C. Circuit.  The Circuit Court majority has maintained a deeply skeptical attitude about judicial second-guessing of the political branches, especially the Executive — an attitude that has led to three direct overrulings of that Court by the Supreme Court.

Another frustration is that most of the district judges have had to put a good part of their other work to the side, or to give it less attention, in order to give priority status to the detainee cases.  At one time, there were more than 200 of those cases in the District Court, and, after Boumediene, each of them took on a new urgency.  The Supreme Court made clear that further delay in resolving long-term detention status would not be tolerated.

And there is the perhaps daunting challenge — and this is the source of the complaint the judges have made in their public statements asking for help — that they are the front-line in the judicial enterprise of giving meaning to the mandate of Boumediene.  Trial judges are more comfortable, in general,  fitting existing rules to new facts, and vice versa, and they would prefer to know the rules in advance rather than having to craft them along the way.  It may be, however, that the prospects for a new legislative effort to craft detention rules for them to apply are not very promising.

While Congress is currently more or less standing by, discontentedly watching the judges implement Boumediene, past efforts by the lawmakers to craft detention policy have not worked out very well.  The lawmakers’ first preference, of course, was to keep the courts out of detention affairs altogether.  That did not pass muster in the Supreme Court.  Their second preference was to devise new machinery to implement detention policy — a military trial system that has faltered repeatedly, and a Circuit Court detention-review policy that ultimately bogged down and then was scuttled by the Circuit Court itself.  Their third preference was to dictate that no detainees could be released into the U.S., and no detainee could be released to any other destination until Congress was first notified — and that preference is now under review in the Supreme Court.

So, on the date when Guantanamo was to be closed and the fate of the detainees there largely if not totally resolved, the new debate over where to turn next has no predictable outcome, but the judges and the Justices will proceed in the meantime.

Posted in Analysis, Detainee Litigation