Perplexing Views

Approximately a month and a half after arguing vehemently in favor of Petitioners in Bagram / Guantanamo detainee litigation [at practice oral arguments at school], I suddenly find myself agreeing fully with Justice Roberts' dissent in Boumediene v. Bush.

More on this later, if I get the chance and am still as perplexed about my newfound concurrence with the conservative Roberts position as I am now.

[/XY Comment]: Personally I see changing your mind as displaying admirable flexibility. I'd love to know what arguments Roberts made that changed your mind. Also interested in if you read Roberts' arguments before, but are only now finding his arguments convincing.

[/XX Update]:

QUICK AND DIRTY SUMMARY OF MAJORITY BOUMEDIENE HOLDING (Justice Kennedy, 5-4 decision): Kennedy holds that Guantanamo bay detainees have the right to seek habeas corpus, because:

(1) the writ extends to Guantanamo under a 3-factor test which the Court articulated and applied;
(2) Congress has not suspended the writ in accordance with the Suspension Clause [Constitution, Art I. Sec. 9]; and
(3) Congress has not provided an adequate substitute for habeas.

The Court struck down Section 7 of the Military Commissions Act of 2006, which stripped federal courts of jurisdiction to hear habeas petitions from enemy combatants, as an unconstitutional suspension of the writ.

I first read this case in Con Law, in preparation for writing my brief on a very similar issue (whether the writ runs to Bagram, Afghanistan). I had briefly skimmed over the Roberts and Scalia dissents. I'd focused immediately on the constitutional questions - following Kennedy's reasoning, looking at the Suspension Clause, applying the Boumediene 3-factor test, etc. Granted, I'd had to take the case as a given, since it's Supreme Court precedent.

So, what made me change my mind? This second time around, I read the class for Civil Procedure, focusing on the procedural parts. And, in reading the Roberts dissent in this new context, I largely agree with him that maybe the constitutional issue should never have come up in the first place.

ROBERTS DISSENT

It's a long (and eloquent) dissent, but basically, Roberts argues that the Court should have resolved the case on other grounds. He argues that the court should have asked first whether the system that Congress designed satisfies any rights that the detainees may possess -- basically, question #3 in the majority's opinion, but asked in a slightly different way.

As background, Congress had legislated a system wherein these tribunals called CSRTs make initial and periodic status determinations of enemy combatans held by the executive. Then, to satisfy some other Guantanamo-related cases, Congress added judicial review under a DTA process, where the D.C. Circuit was allowed to review CSRT determinations under limited circumstances. This was Congress's attempt to balance the need for process with the need to protect national security.

Kennedy/Majority evaluated the DTA process as an inadequate substitute for habeas. So, habeas was the standard against which DTA was measured. Roberts argues that that's not the right approach - the Court should have asked whether the DTA process satisfies any due process rights the detainees have in the first place. (Roberts essentially answers his question in the affirmative, but that part is less convincing to me. Still - since this was a dissent, he didn't have to make his affirmative case.)

I agree especially with Roberts' assessment of the majority holding, which essentially dumps Congress's prescribed DTA process as inadequate (but then doesn't scrap it off the books, either] without really specifying what procedures will replace them.

Yes, the Court grants habeas, but habeas is malleable. Will the Court allow hearsay evidence? [An earlier Guantanamo case, Hamdi, argued yes.] Will the Court allow a presumption for the government's evidence? [Hamdi said yes.] What will be done about the confidentiality / military secrets problem? [The DTA process dealt with this explicitly. The majority opinion says, Ohhhh the lower courts can figure it out themselves, hyuck hyuck hyuck!] Are they entitled to counsel? What's the evidentiary standard? Who has the burden of proof, the burden of non-persuasion?

Roberts argues that these uncertainties about how a habeas proceeding would balance the need for 'process' against national security interests will probably have to be resolved in further litigation to determine exactly what process is required.

What bothered me most about the majority opinion was that one of its biggest beefs with DTA was that detainees would have limited access to witnesses and exculpatory evidence, because of their detainment and lack of access to counsel. But then after granting the magic habeas on them, the Court doesn't even rectify the very procedural problem they pointed out. It's perplexing.

There's more substance to Roberts' dissent than I've written here. He makes a separation of powers point that because the Court hasn't really specified what procedures would be used in these habeas cases, the majority basically just grabbed the detainee issue away from the legislature. It's kind of an overly dramatic point - the traditional conservative Judicial Activism complaint. But here, I find it kind of true.

Again, I think Roberts grossly over-estimates the value of the CSRT/DTA process. He makes it sound like the detainees are getting a full criminal or military trial or something, but really... the CSRT/DTA process is nothing close to that. Still, the question is whether they're getting process that they're entitled to. I'd be curious to see what due process rights Roberts - or anyone - thinks detainees have, though, if any (and where they'd come from, because ... then you'd have to get into the question of whether the 5th Amendment applies outside of the U.S.).

Despite those criticisms, I find Roberts' overall argument convincing. And I think the main change in why I was pro-Majority the first time and pro-Roberts this second time around is the lens through which I read the case - constitutional vs. procedural.

FYI, my own view, from a policy perspective - not a legal perspective - is you should give detainees process anyway, even if they're not entitled to it, just because there has to be SOME WAY, even if it's a hard way, for an innocent detainee to get out of indefinite detention. But again, from a legal POV, under a Roberts analysis, there doesn't seem to be a legal source for detainee due process rights. Which is exactly why CONGRESS prescribed the CSRT/DTA process. And if that isn't sufficient, in some moral sense, then CONGRESS should provide better process.

Anyway. I've taken too long of a study break... and rambled on for way too long... but I hope you found it interesting.