Essay About Judicial Review Images

Introduction

Richard Bellamy has written a powerful critique of judicial review. At the same time, he has offered a serious, sustained defense of unicameral parliamentary supremacy. While Bellamy's arguments are ultimately unpersuasive, the array he marshals is impressive, drawing on political science as well as moral, political, and legal theory. This review cannot hope to address all the points Bellamy discusses in his well-researched book; however, it does respond to his central theses, drawing significantly from the work of Mattias Kumm1 and, at the same time, offering a novel defense of constitutionalism and judicial review. This defense argues that certain of the costs of judicial review are worth bearing in order to keep alive the lessons of history embodied in constitutions, lest future generations forget history and, thereby, prove doomed to repeat it.

What is particularly noteworthy about Bellamy's book is that it is more radical than the works of others on which he builds.2 He not only takes aim at courts that strike down democratic laws on the ground that they violate constitutionally protected rights; he also has in his sights courts that do so on the grounds of procedural or democratic defects. In this way, he is more radical than such critics of judicial review as Jeremy Waldron, whose concern is only with courts in the first category.3 Bellamy objects even to the most straightforward application of the text of a constitution in striking down laws. Indeed, he objects to the very notion of legislatures checking themselves by appeal to a written constitution, for such a system would limit the legislature's ability to carry out the agenda of a current majority. This is a view that no other prominent critic of judicial review has taken.

Bellamy objects, as well, to what Waldron calls weak judicial review—which Waldron does not oppose—whereby “courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated.”4 In Bellamy's view, to accord even that limited authority to the courts interferes unduly with the legislative process,5 since legislators would be in an untenable position if they had to put themselves on record as voting for a law a court has found to be in violation of some right or rights found on a canonical list of rights. If they do so, “it appears they are putting rights to one side” (p. 48).6 To avoid such an appearance, legislators will normally defer to the judgment of the court, rather than argue, as they should feel free to do, for “an alternative view of how [the rights in question] should be interpreted” (p. 48).7

Bellamy's core objection to judicial review is that it strips the people of their most basic “constitutional” right: the power to address afresh any issue and to decide together, as equals, how to handle it. By denying people this power and by empowering, instead, a group of judges who are not accountable to the people, legal constitutions set up regimes of domination in which almost everyone is subject to the arbitrary rule of others, namely, the judges of the constitutional or supreme court. According to Bellamy, this erosion of democracy, this establishment of what civic republicans should consider an unjust domination by the courts, is the fundamental failure of legal constitutionalism.8

In place of legal constitutionalism, Bellamy counsels faith in the capacity of democracies to police themselves, to remedy their own shortcomings better than any judicial supervision could hope to do. This is not to say that he thinks democracies lack shortcomings. He acknowledges that there are “hard cases” in which legislatures may be prone to violate the rights of certain individuals—cases dealing with security concerns in states of emergency, with issues of “private morality that nonetheless have a public dimension,” or with “discrete and insular minorities” (p. 249). His point, however, is that checks on the power of parliamentary majorities, especially judicial checks, do not, on the whole, enhance rights protection, but they do carry a cost: they undermine democracy and political equality.

Judicial review undermines political equality by treating citizens as subjects who are dominated by the will and judgment of others. And it cannot offer the compensatory benefit of helping to protect rights for two reasons. First, if the majority is bent on disregarding the rights of certain minorities, “then the likelihood is that the prejudice will be shared by a significant majority of the elite [i.e. the judiciary] as well” (p. 257).9 Second, if there is reasonable disagreement about how to handle a politically difficult issue, such as the balance between security and civil liberties, then such a problem cannot be resolved by a court. Some will feel vindicated by a court's decision, but others will object that the court got it wrong. Even if there is a truth to the matter—Bellamy is no crude relativist—there is no politically neutral position from which to establish the truth. Any claim that the court helps to protect rights or promote justice will, as a matter of politics, be question begging. Resolution of ideological disputes about what justice calls for will come only through people trying to find common ground, a process best achieved in the crucible of democratic discussion and compromise, a process undermined by the handing down of judgments from on high.

Bellamy's critique of judicial review is buttressed further by his observations regarding the capacity of democracies to police themselves without the help of judicial review. History shows that many have been able to address the exclusion and oppression of minority and disempowered groups in their midst, both in terms of substantive rights and rights of democratic participation. There is no denying, for example, that England has evolved to be a rights-respecting country more or less on a par with the United States and other liberal democracies that have judicial review.10 And even in the United States, it was not judicial review that addressed the worst forms of exclusion of blacks or women; it was legislative action ranging from the Nineteenth Amendment, giving women the vote, to the Civil Rights Act of 1964 and the Voting Rights Act of 1965.11

Nevertheless, in rejecting judicial review, Bellamy makes four important mistakes. First, he overlooks one way in which a court can practice judicial review without substituting its own weighing of political values for that of a legislature. Second, he is overly dismissive of the fact that judicial review serves a crucial function otherwise missed by democracies: giving individuals the standing to ask the government to give an account of itself. Third, Bellamy's conception of domination by judicial review is overblown. In some sense, domination is unavoidable with any government by others, whether one has an equal say in the process or not. In another sense, if one accepts the possibility of legitimate government, then judges having the power of judicial review is not qualitatively any more dominating or arbitrary than other forms of governmental power. Fourth, he fails to take into account how the development of substantive constitutional jurisprudence by courts helps to preserve certain hard-won lessons of history, thereby guarding against any tendency of the majority to forget these lessons, only to have to relearn them the hard way.

1. How not to argue for judicial review

It is important to be clear that one argument not being advanced here as a basis for criticizing Bellamy is that a court like the U.S. Supreme Court can generally be relied on to resolve questions of constitutional law in the right way. A liberal citizen of the U.S. (in the left-of-center sense) may be tempted to reject Bellamy's position by citing cases in which the Supreme Court's rulings significantly advanced the rights such a citizen would wish to see advanced: Brown v. Board of Education;12Wesberry v. Sanders;13Roe v. Wade;14Romer v. Evans;15Lawrence v. Texas;16Roper v. Simmons;17 and, most recently, Boumediene v. Bush.18 The list could go on, and, with such a hit parade, it is hard for someone with left-of-center political convictions not to feel moved to respect the Court. Nevertheless, there are two reasons why this is not the way to refute Bellamy.

First, one may also draw up a list of cases that the liberal citizen might think were decided the wrong way: Lochner v. NY;19Buckley v. Valeo;20U.S. v. Morrison;21Parents Involved in Community Schools v. Seattle School District No. 1;22 and, most recently, District of Columbia v. Heller.23 Notice, these cases are not simply instances of the Court's failing to protect rights—depending on one's view of the rights at stake, one might judge Gonzales v. Carhart24 or Kelo v. City of New London,25 as instances of the Court's failing to protect rights—rather, these are cases where the Court has interfered with legislative attempts to protect rights. And the list could go on.

Second, given the reasonable nature of such disagreement, Bellamy's challenge seems at least plausible: Why should the Court be accorded the power to resolve such disagreements? Members of a high court, presumably, are smarter than most of their compatriots; they are also presumably better at reasoning in a principled fashion about practical affairs. But legal reasoning and skill should not be confused with moral reasoning and insight.26 As Bellamy plausibly puts it, “claims to moral expertise rest on dubious foundations…” (p. 40). Additionally, judges tend to reason in legalistic ways that do not squarely engage many of the relevant moral issues, whereas legislators address the moral issues in their own terms (p. 37). Why not let the people and their elected representatives—who may be about as skilled at practical reasoning as judges—work out how best to resolve these contentious issues? The argument for judicial review, therefore, must be made on other grounds.

2. Another way not to argue for judicial review

To illustrate further the strength of Bellamy's position, one may extend his argument to address the work of a recent “uneasy” defender of judicial review, Richard Fallon.27 Fallon argues that judicial review, under certain circumstances and if well designed, can be a useful tool in protecting fundamental rights. It provides an extra veto, which serves to safeguard those rights against unjust infringement. As he puts it: “If errors of underprotection—that is, infringements of rights—are more morally serious than errors of overprotection, and if a few other plausible conditions obtain, then there could be outcome-related reasons to prefer a system with judicial review to one without it.”28

Fallon is a sophisticated thinker, and he is aware of all the assumptions he needs to make to render his argument viable. He acknowledges, for example, that it turns on the assumption that “[l]egislative action is more likely to violate fundamental rights than legislative inaction.”29 He acknowledges, moreover, that his argument does not support judicial review when “the legislature has striven conscientiously to determine which of two competing fundamental rights claims deserves to prevail.”30 What he fails to recognize, however, is that the proper specification of rights can be determined by matters that are not themselves questions of fundamental rights.

Economic regulations are of central importance to Fallon's picture of legislation that does not impact fundamental rights. He seems committed to the idea that courts should not interfere with legislative decisions about economic regulation unless there is a fundamental right at stake, in which case the fundamental right would presumably trump. This may seem like constitutional common sense in the post-Lochner era. During the Lochner era, the Supreme Court saw itself as striking down economic regulations in order to protect the fundamental freedom to contract.31 Most commentators have concluded that they were wrong to do so,32 but it matters why they were wrong. If they were wrong because the freedom of contract is not a fundamental right, then Fallon's picture fits. However, if they were wrong because, while freedom of contract is a fundamental right, other concerns, including the promotion of general economic growth, play a role in shaping that right, then Fallon's picture does not fit.

How should we choose between these two interpretations? Consider the more recent case of Kelo.33 Four justices on the Supreme Court thought that the right to property should have prevented the city of New London from taking private property for the sake of economic development; five, however, were willing to allow the local government to place greater weight on economic development than on respect for property rights. It seems reasonable enough to say that property rights are fundamental: it really would be a rights violation to take property from A and give it to B for something other than a public purpose. However, if that is so, then Fallon's scheme seems to resolve the case too readily. It would imply that the minority clearly should have won, as there is a fundamental right on one side (the right to property), with nothing but economic interests on the other. Still, it would be quite odd for a theory of judicial review to give rise to such an unequivocal conclusion in a case like this. Thus Fallon's picture seems to have implausible implications.

Bellamy provides the philosophical framework for generalizing this point. He argues that the specification of rights, including fundamental rights, should take into account the effect on the common good of the various possible specifications: “Indeed, rights charters often refer to the legitimacy of limiting certain rights ‘for the purpose of securing due recognition of and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’” (p. 30).34 The point is that a court cannot decide how to specify and apply fundamental rights without balancing them against considerations of the general welfare as well as competing rights.35 Such balancing is subject to reasonable disagreement. If courts should abstain from passing judgment on a legislature's conscientious attempts “to determine which of two competing fundamental rights claims deserves to prevail,” then they should similarly abstain from passing judgment on a legislature's conscientious attempts to balance the general welfare with concern for fundamental rights, at least as long as the issue is one over which reasonable people can disagree.

3. Judicial review need not involve second-guessing the legislature's value judgments

Despite the strengths of Bellamy's position, there are four reasons why it fails.

The first is as follows: Contrary to Bellamy's depiction of judicial review, it need not involve the judiciary in making contested value judgments that second-guess the reasonable value judgments expressed by democratically enacted legislation. There is a way to practice judicial review so that its role is simply to ensure the legislature does not abuse its power by passing legislation that cannot be justified in terms of legitimate public reasons—reasons that respect all people, first, as free to pursue their own conception of a good life insofar as they do not violate the rights of others and, second, as equal in their standing before the law.36 In other words, its role can be purely to ferret out illegitimate uses of power that all reasonable people would agree are such. Not that this model of judicial review involves no contestable value judgments at all. Certain value judgments are inherent in the idea of legitimate public reason, and these can be contested. Still, in an important sense, they cannot be “reasonably” contested.

As Mattias Kumm has argued, this is what courts do when they employ what Europeans call “proportionality analysis.”37 This function can be exercised even if people reasonably disagree about what policy would be best when it comes to a particular social or political problem. The point of such analysis is not to make new constitutional law in the common law tradition,38 although, as we will see below, to some extent this cannot be helped. The point is merely to vet individual legislative acts to ensure that, insofar as they infringe on the rights of certain people, they do so on bases that could be thought sufficient by reasonable people. To some degree, the description that follows may be an idealization more than a description of actual practice.39 However, it is an idealization that describes a possible application of judicial review; moreover, it is accepted as normative by many European jurists and scholars.40

There are four steps in proportionality review. First, does the law have a legitimate aim? For example, if the law's aim were simply to disadvantage a politically disfavored group of people, or to promote a particular religious faith, then the law would fail this test and should be struck down. Second, are the means the law seeks to use to achieve its aim suitable? If they are clearly unrelated to the aim, then again, the law cannot stand. Third, is there an alternative means that is less restrictive of the rights of those negatively affected by a law and that is, at the same time, equally effective and equally cost effective for the state?41 This is at least arguably the same as the narrowly tailored prong of strict scrutiny analysis in the U.S.,42 although it does not include the compelling-government-interest prong. The government does not have to show that the legitimate end is compelling; it suffices if the government would have to use a less effective or more costly means of achieving the same end in order to avoid imposing the same or greater cost on those who are negatively affected.

Finally, if the law passes those three steps, the court goes to step four: proportionality in the narrow sense. On the surface, this is a balancing test that holds that “the greater the degree of non-satisfaction of, or detriment to, one principle (or value), the greater must be the importance of satisfying the other.”43 In other words, the restrictions on the rights of those who are negatively affected must not be disproportionate relative to the value of the legitimate aim that would justify the law. Taken at face value, such balancing is worrisome; it is exactly the sort of second-guessing in which one would not want a court to engage. However, properly understood, such balancing is performed with a large margin of appreciation for the judgment of the legislature whose law is under examination. A law will be found unconstitutional only if the best attempt to provide a legitimate aim for the law yields an aim no reasonable person would think sufficient to justify the negative costs involved. Such a finding indicates either that the legislature was inattentive to the costs imposed by the law or that its purported legitimate goal was mere pretext and that what must have been motivating the legislature, in fact, was an illegitimate aim, one that cannot justify any law at all.

Though the U.S. does not use this framework, its analysis sometimes—particularly when using a “rational basis with bite” test—has the same effect.44 Consider, for example, Romer v. Evans. The decision found that only an illegitimate animus against homosexuals could have explained the Colorado amendment that barred cities, towns, counties, and state judges from protecting homosexuals from discrimination. Translated into the proportionality framework, the Court found the law problematic either at step one or at step four: either the law did not have a legitimate purpose on its face or, insofar as legitimate aims were offered for it, the Court found that the goals were either pretexts or simply inadequate.

Bellamy might want to object that Romer was not unanimous—it was six to three—which shows that, in fact, reasonable people could disagree about whether the law was justified by a legitimate end. Where the majority saw an illegitimate animus, the dissent saw a legitimate moral aim—the protection of traditional morality—and one consistent with many prior court rulings. Thus either this case does not illustrate proportionality analysis well, which leaves one wondering: If not this case, then which one?45 Or it does illustrate proportionality analysis well, and it shows it to be just as presumptuous with regard to matters of reasonable disagreement as any other sort of judicial review.

The right response to this objection relies on distinguishing two senses of “reasonable,” the technical sense introduced above, and the more common usage implicit in the objection. With the latter usage, “reasonable” means supportable by reasons that make sense, that a well-informed, intelligent person might take to be sufficient. In the more technical sense, to be “reasonable” also involves treating people as free and equal. A reasonable person in the technical sense would accept that personal conceptions of the good life are not matters for public interference except when, and only insofar as, their promulgation or pursuit would plausibly violate the rights of others. The dissent in Romer was not, in this technical sense, reasonable.

Of course, using this technical notion of reasonable to license judicial review is itself controversial, and Bellamy might want to reject it. Nevertheless, it is a defining commitment of a liberal society. Moreover, even Bellamy must accept certain basic normative commitments to support parliamentary supremacy as strongly as he does. He is committed to each person's vote having the same weight as any other's in electing the government; to nondomination as a basic political norm; and to certain forms of public reasoning, which he sees as essential for the government's legitimacy. None of these is self-evidently true or beyond political objection. Many smart people, now and over the course of history, have rejected all of these commitments. Still, it is reasonable for Bellamy to use each of these normative premises—even though one may disagree with him over how some of them are to be used. It is likewise reasonable to use the technical notion of reasonableness as a test for the constitutionality of legislation. Any rejection of the basic liberal commitment to the freedom to pursue one's own conception of the good as long as one does not violate the rights of others should be treated as unreasonable.46

It is noteworthy that the U.S. Supreme Court has been working its way toward this position, namely, that “morals legislation”—legislation aimed at restricting behavior that is viewed as immoral even though no one is harmed and no one treated unjustly—is illegitimate.47 In doing so, it is developing its constitutional jurisprudence in a way that better reflects the political liberal commitment to treat all as free and equal. Indeed, its evolving jurisprudence on morals legislation tracks its development, many decades earlier, of a liberal jurisprudence of equal protection under the law—a jurisprudence that is inconsistent with the kind of racial segregation upheld in Plessy v. Ferguson48 and other cases prior to Brown.

Because proportionality analysis relies on the existence of a line between legitimate and illegitimate reasons for legislation, proportionality analysis cannot avoid developing a substantive jurisprudence. It is important, however, not to overstate this observation. Proportionality analysis aims to be narrow and case-focused. Even though it is grounded in specific constitutional texts,49 it does not seek to develop substantive constitutional norms the way the U.S. Supreme Court does when it interprets the U.S. Constitution. My point is only that—to some extent—insofar as proportionality analysis distinguishes between legitimate and illegitimate reasons, it cannot help but develop some substantive constitutional jurisprudence. We will come back to the appropriateness of a court's developing a set of substantive positions when we arrive at the last argument.

To sum up: proportionality analysis provides a model of judicial review in which the court does not second-guess the reasonable value judgments expressed by democratically enacted legislation. Rather, the court looks only to ensure that the laws in question can be justified in terms of legitimate public reasons.

Still, one could wonder: Why give courts this veto power? Why not rely on legislatures to police themselves? The answer is threefold. First, it is reasonable to think that courts, when using proportionality analysis, can add something of value to the vetting of legislation. As judges on constitutional courts normally do not stand for reelection and, thus, are less subject to political pressure than legislators, and as they focus on individual cases that a legislature may have overlooked and are trained by their profession to take structured justifications seriously, they bring a different and useful perspective to bear on the question of whether a law can plausibly be supported with public reasons.50 Second, adding an extra veto is unlikely to result in legitimate laws being struck down but is likely to prevent at least some illegitimate laws from being enforced. This is not to say that judicial review in general is unlikely to result in the striking down of legitimate laws; the claim is only that judges acting within the framework of proportionality analysis are unlikely to cause legitimate laws to be struck down. Taking these points together, judicial review is justified by the prospect of improved outcomes, using a scale that all reasonable people should accept.

The third justification is addressed in the section that follows.

4. Judicial review serves an important function otherwise missed in a democracy: Giving individuals the standing to call the government to account

The second problem with Bellamy's argument is that he is overly dismissive of a crucial function that judicial review serves in democracies, one that otherwise might be missed, namely, giving individuals the standing to require the government to give an account of itself. He observes that some think “that a court offers an important source of contestation for those individuals whose concerns have been overlooked by a legislature” (p. 39).51 However, he thinks that legislatures only rarely overlook or pay inadequate attention to individuals or groups. And “even if a [brake] on majority oppression was necessary, it is not clear that courts do or should offer an alternative, counter-majoritarian force” (p. 39). Bellamy offers three reasons why courts should not offer such a force: (1) they “tend to be less independent than is often supposed”; (2) “access to them is more limited and prone to reflect inequalities of power than majoritarian voting”; and (3) “their influence on the legislative process may be malign as well as benign” (p. 39). These reasons do not adequately support his position.

The first of Bellamy's reasons is relatively inconsequential. A court does not have to thwart the majority's will in a profound way to hold a legislature to certain basic standards, which its members may profess to accept even though they may have been tempted to overlook them in a particular instance. There is even less reason to worry about a court's acting against the majority will of a nation in a federal system.52 The U.S. Supreme Court can rein in rogue states without violating the will of a national majority, and most often this is what the Court does (p. 41); it rarely strikes down state laws that are in force in a majority of the states.53

The second reason is just mistaken. Bellamy writes that the same inequalities in political power that cause some to be harmed by legislation “apply to the mounting of court cases. These too favour those with deep pockets and the skills, time, money, influence and capacity to muster concerted support” (p. 42). This claim misses the reality of public interest litigation. At least in the U.S., there are a great many groups doing public interest litigation that will take up the case of poor plaintiffs for free since doing so allows them to challenge laws they think are unjust. In addition, there are plenty of talented lawyers who take pro bono cases while working at big law firms. These lawyers are on the lookout for poor clients on whose behalf they can raise an interesting legal challenge, or they scour the courts to find an interesting case to bring up on appeal. Of course, not all poor plaintiffs will have an easy time getting their day in court. Unsympathetic plaintiffs may not have their cases picked up by public interest lawyers. In addition, companies that are repeatedly called on to defend themselves may strategize about which plaintiffs to settle with, choosing to go to court only against a likely loser, against whom they hope not only to win but to establish favorable precedents.54 Nevertheless, on average, the money and networking skills required to bring a lawsuit challenging a piece of legislation are normally far less than the money and skills necessary to organize politically well enough to enact legislation. As Kumm notes, “The most likely way that a citizen is ever going to change the outcomes of a national political process, is by going to court and claiming that his rights have been violated by public authorities.”55

Finally, Bellamy's third argument against the worth of constitutional litigation for marginalized individuals and groups is that the influence of courts “on the legislative process may be malign as well as benign.” What he has in mind is that constitutional litigation distorts the democratic process. Losers in Supreme Court cases in the U.S. have to seek supermajority support to amend the Constitution, rather than winning mere majority support to overturn a disliked law. Moreover, taking matters issue by issue removes them from the normal politics of trade-offs, which allows even losers to gain something. Finally, constitutional litigation politicizes the judicial nominating process, and thus politicizes the courts themselves (pp. 43–44).

These are all reasonable concerns, but they do not carry the day. Bellamy assumes that the Court is simply second-guessing normal political values. That is what makes it plausible to compare losers in constitutional litigation with losers in a legislative battle. But if the Court is engaging in proportionality review, that is not a fair characterization. And even if the Court is engaging in substantive constitutional jurisprudence, there is value in upholding basic constitutional principles, even if people will disagree about how those principles should be upheld (this point will be developed further in the fourth argument). Finally, even if constitutional litigation politicizes courts, they remain less political than the political branches and can still serve a useful function vetting legislation.

In the end, Bellamy is overly sanguine about the prospects of all perspectives, sooner or later, being taken into account in a democracy. He may be right in claiming that no substantial group of people will be treated as politically irrelevant in the long run—that is, over the span of generations.56 Even so, this provides little solace to those whose interests are not properly taken into account in the here and now. Nor would it give them much reason to treat laws, which, on any reasonable reading, show them little respect, as legitimate. If it suits a majority, at a certain point in time, to treat a minority as though its interests do not count, there is no democratic check against its doing so. Of course, individuals can have standing to challenge a law's application in a court even without the court's having the power of judicial review.57 This is worth something. But if a law would not pass the proportionality test or would violate an individual's rights, then challenging its application will not suffice. It is only a court with the power of judicial review that can give individuals who are not—now, if ever—politically well connected the opportunity to challenge legislation that may violate basic liberal or constitutional norms.58

5. The irrelevance of nondomination in assessing judicial review

The third problem with Bellamy's argument is that he overplays the relevance of nondomination. He argues that one achieves nondomination in a political system when one has an equal say with all of one's fellow citizens regarding the policies the government will adopt (p. 165). This is dubious, however, as one could have an equal say and yet have one's views rejected by the majority, who would then go on to treat one as a slave in every regard but one—namely, one would retain the residual right to vote. Bellamy should recognize this problem, given that he earlier defines domination as “the acceptance by the dominated of the dominator's entitlement to impose duties on them” (p. 160). A democrat who accepts unlimited majority rule accepts that the majority has the power to impose duties on him; indeed, he accepts that they can impose any duties, no matter how oppressive. If one is not part of the democratic majority, then one can be as dominated by the others who constitute a majority as by any who claim the right to rule as a birthright under a hierarchical model of government.

Anarchists accept this argument as a reason to reject all government. If one accepts that government can be legitimate, however—presumably, because it can protect substantive rights and can provide for possibilities of coordination that are in the interest of all or almost all—then one has to accept that there will be groups or individuals who can, by taking certain actions, impose duties on one. And once one accepts this, then not much can be gained for Bellamy's position by focusing on nondomination. This is not to dismiss the potential significance of nondomination as a political norm; it is only to insist that the norm cannot be deployed as Bellamy deploys it to delegitimize judicial review.

It is particularly odd for Bellamy to insist that “citizens will need to feel that no difference of status exists between them and the decision-makers” (p. 164). One cannot avoid the existence of such a difference of status as soon as one accepts the need for representative democracy.59 Elected representatives have a status that normal citizens do not have. Outside of referenda, only elected representatives are in a position to cast votes that matter for the making of laws. To be sure, citizens have some influence over how elected representatives act through their collective power to vote them out of office. Nonetheless, if a legislator chooses to vote contrary to the judgment of the majority of his constituents, those in that majority typically have no legal recourse.

Importantly, this kind of rule by representatives who need not do what the majority want on a given matter is inevitable in a representative democracy. Citizens do not have a choice between hundreds of different representatives with subtly different views, so that they can pick the representatives whose views completely align with their own. They have a choice between two or at most a few representatives. This means that representatives can leverage doing what the majority wants on some issues into the power to go against the majority of their constituents on other issues.

What, then, does Bellamy think renders constitutional judges uniquely dominating, in contrast with legislators? He seems to have two points in mind: (1) they cannot be voted out of office, and (2) “Judges … seem to be claiming a different status to ordinary citizens” (p. 165). With regard to being voted out of office, that is at most a difference of degree, not of kind. In most jurisdictions, elected representatives serve for a number of years, regardless of how unhappy their constituents are with them. While there are some government officials in some places who are subject to a recall vote at any time—the recall of California Governor Gray Davis opened the door for the early election of Governor Arnold Schwarzenegger—Bellamy offers no hint that this would have to be an option for representative democracy to be legitimate. Granted, federal judges in the U.S. and constitutional judges in other countries like Germany do not stand for reelection, while most legislators do. There is, however, nothing about being a judge that requires a judge not to stand for reelection; indeed, most state judges in the U.S. do. And even if it is a bad idea to have judges stand for election and reelection—as argued above, their freedom from immediate political pressure may help make them a better check on legislative abuse of power—the difference here is still only a matter of degree: How many years can someone hold an office before the voters have the opportunity to replace him with someone else whose views they hope they will, on the whole, prefer?60

More fundamentally, the crucial question for republicans concerned with nondomination is whether governmental officials, judges included, can exercise their authority in arbitrary ways.61 Voting an official out of office is only one way to constrain official behavior in order to ensure that it is not arbitrary. Judges, even justices on a constitutional court, can be constrained in a number of ways, which, collectively, should be about as effective as any constraints on a democratic legislature. Externally, judges can be checked by the threat of jurisdiction stripping, court packing, or impeachment, not to mention the threat of simply being ignored. And internally, judges, at least those with integrity, are restrained by their awareness that their job is to interpret the law.

With regard to the second point, Bellamy thinks that judges claim either moral or legal superiority (p. 166), and that such a claim conflicts with the basic equality that is demanded by nondomination. However, while some defenders of judicial review may claim that judges have superior moral judgment,62 the judges themselves generally do not. They strive to make their constitutional decisions on the basis of law, and in that regard their appointment gives them the authority to do so, just as election to Congress gives members of that body the authority to vote there. Sometimes judges cannot help but interpret moral norms in the process of interpreting the law, but when they do, they do not claim to be qualified for the job in virtue of having special moral insights. They claim only the privilege of their office. In this way, they are absolutely no different from legislators who vote on the basis of their moral convictions.

In sum, the worry about domination by judges seems to turn on a set of misconceptions regarding both the nature of domination and the nature of government. As a result, it is essentially without substance. A sound concern with nondomination would seek to ensure that the basic rights with regard to freedom and equality are respected. There is no reason to think that courts cannot play an important complementary role in that endeavor.

6. The value of constitutions and constitutional jurisprudence

Turning, then to the fourth and final problem with Bellamy's work, he appears to believe—wrongly—that constitutions that restrict parliamentary bodies have no positive value. This is mistaken on a number of levels. On an economic level, constitutions can stabilize a legal order, and stability encourages economic activity.63 On a moral level, constitutional law texts embody certain hard-won lessons of history, and their development into substantive constitutional jurisprudence by courts helps to preserve those lessons. The focus here will be on this moral level.

According to Bellamy, the problem with constitutions is that they are thought of as embodying some great wisdom that is missing in legislatures as they go about their normal business. This is, according to Bellamy, a mistake. Constitutions reflect nothing other than the view of a majority, perhaps a supermajority, at some point in time. If that view seems to a majority, at some later point in time, to be misguided the people should be free to drop it. The dead hand of the past should not bind the present. Legislatures should always be free to do as they see fit.

Bellamy's main target in making this argument is Bruce Ackerman.64 As Bellamy describes Ackerman's position, it starts with a distinction between periods of “normal” politics, during which people are divided into various interest groups that struggle to obtain the support of the government, and periods of “constitutional” politics, during which, as Bellamy puts it, “some national crisis manages to unite the people and leads them to transcend their own particular interests and consider the common good” (p. 130). Were this accurate it would help to explain why constitutions should limit the activities of government during periods of normal politics. The periods of constitutional politics would reflect the will of “We the People” and this would legitimately provide a framework for limiting the activities of government during the normal periods, when it reflects nothing much more than a struggle for power and resources.

Bellamy's objection is that this model is an unrealistic caricature of both types of politics. Periods of constitutional politics are not times uniquely characterized by people coming together to speak with one voice on matters of principle. Rather, political divisions remain even during periods of constitutional politics, and compromises have to be hammered out to reach agreement. And, from the other side of the ledger, normal politics is not as unprincipled as Ackerman contends. Voters and legislators are moved, even in so-called normal times, by considerations of principle and right.

It must be said that Bellamy's portrait of and critique of Ackerman is somewhat unfair. Ackerman knows that even in periods of normal politics, many voters are moved by more than “the pursuit of private interest.”65 Moreover, he knows that during periods of constitutional politics reformers are confronted by constitutional conservatives who do not agree with them.66 Indeed, Ackerman sounds a lot like Bellamy when he rejects what he calls a “dark picture,” according to which “normal politics … yield[s] statutes that were nothing more than deals by selfish interest groups, each looking out for itself without a thought for the general welfare”; and he likewise rejects the view that “higher lawmaking” “is the only kind of lawmaking in which anybody is taking the public interest at all seriously.”67 According to Ackerman, the difference between normal and constitutional politics is that in normal politics “the people” have not come together behind a particular reform or set of reforms they want to impose on the higher law. Constitutional politics occurs only when support for a reform initiative is extraordinary not only in terms its depth and breadth in the voting public but also when it has what Ackerman calls decisiveness: “It should be in a position to decisively defeat all the plausible alternatives in a series of pairwise comparisons.”68

Nevertheless, even with a more nuanced depiction of Ackerman's view, Bellamy can still object that the mere fact that a supermajority, at one time, supported some initiative deeply, broadly, and decisively does not establish that future generations should be bound by what it did. A later majority may come to think the earlier constitutional lawmaking was misguided or no longer relevant, and, at that point, it is not obvious why the earlier decision should still be binding. Some extra premise is needed.

The extra premise is that constitutional moments normally follow substantial crises, when some moral principle usually has been learned. The deference owed constitutional enactments, then, is a deference owed something that has a strong claim of authentic moral authority. As Bellamy himself, following Ackerman, acknowledges, constitutions, or significant amendments thereto, “commonly come into being after a period of general political collapse, frequently following military defeat and often involving civil war” (p. 50). He also remarks that, in such situations, “a bill of rights can provide a statement of intent not to commit the errors of the past …” (p. 50). In other words, errors have been identified and framing them in a bill of rights is a way of trying to commit, as a people, to avoiding them in the future.

Bellamy thinks that the benefits of bills of rights are limited to the drafting stage; thereafter, “the effects of such a bill can be unfortunate” (p. 50). This is so, he thinks, because there will be “disagreements over the substance, scope, sphere and subject of rights,” and it “is not always particularly profitable to discuss all these issues in terms of which formulation best interprets the wording of the right in a given document” (p. 50). Note that Bellamy is giving short shrift, here, to the idea that there might be compensating benefits. He sees the positive effect as no different from the positive effects of drafting any legislation: “forc[ing] the contending parties to come together and find common ground through compromise” (p. 50). This overlooks the value of nations learning from their history and trying to preserve those insights so that future generations will not make the same mistakes.

Consider the U.S. Constitution. In its founding moments, there were two sorts of generally accepted lessons that had been learned. First, structurally, it was important to have a stronger central government than had existed under the Articles of Confederation. Second, the British past, with its history of colonialism, had provided lessons regarding the abuse of power that the drafters of the new Constitution could agree were to be avoided: ex post facto laws, the relatively easy lifting of habeas corpus, titles of nobility, and religious tests for office. In addition, the Bill of Rights included various protections that were similarly modeled on the desire to avoid repeating the abuses of the British, such as freedom of speech, the right to assemble peaceably, and protections of criminal process, such as the right to a trial by jury and the right not to be a witness against oneself. Bellamy emphasizes that there were still points of major disagreement, ranging from the continued role of slavery to the mechanism for electing the president (p. 133). True, of course, but that does not mean the founders could not agree on some of the important lessons learned from the abuses of British history.

A similar point can be made about the Civil War amendments. Naturally, the defeated Southern states did not take the same view of the lessons of history as the victorious Northern states; they adopted these amendments under pressure. Nevertheless, the lessons of history were alive for those who worked to ensure that those amendments would become part of the Constitution. Slavery had to be abolished, and blacks had to have the right to vote. Of more systemic importance, the states could no longer be free to ignore the rights the Bill of Rights protected.

Arguably, the same point may be made regarding Ackerman's third constitutional moment, the New Deal. Though the Constitution was not formally amended, its interpretation was dramatically changed. The trauma of the Great Depression had taught most leaders in the country the lesson that modern economies could not be sufficiently regulated if confronted by an absolutist conception of the right of freedom of contract, and if the federal government was restricted to playing a minimal role.

Certainly, the same may be said of the various European constitutions adopted in the wake of World War Two. To take the German Constitution as an example, it was written, in part, to ensure that certain horrors from the Nazi era could not be repeated. To some extent, the protections were the same as those of the much older U.S. Constitution. For example, the German Constitution protects freedom of expression and of the press (article V). But it also mentions certain ideals that are particularly salient given the lessons of the Nazi era. The first article protects the dignity of all humans, a value obviously rejected by the Nazis. In addition, the equal protection clause in article III provides certain specifics, again directed toward learning from past mistakes: no one can be “prejudiced or favored because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions.”

In my view, only the most obvious of these lessons should be understood as set in stone; the function of a constitution, generally, should not be understood to entrench certain principles for all times.69 Rather, the function is to provide a prominent place in politics for certain ideals, thereby helping to ensure that they will play a role for future generations which may not remember the lessons of history on their own. The concern is that the people, as a whole, are likely to be caught up in the issues of the day, and that relatively few will be students of history. The hope is that if the political life of a community is framed by a constitution that embodies at least certain lessons of history, then those lessons are more likely to have ongoing effect. Moreover, a constitutional court, enforcing a jurisprudence that articulates these lessons, will be able to call a community back from possible historical forgetfulness. Again, this is not meant to put a straightjacket on the legislature and the people as a whole. It is meant to create a strong presumption in favor of certain principles, which were embraced as lessons learned, so that they will be neglected only if they have been consciously and conscientiously, deeply, broadly, and decisively rejected by the people on the ground that they were wrong or have been superseded.70

Bellamy would object that even if certain general principles have been learned—and he admits “there is often broad agreement at the level of abstract principle” (p. 16)—“the interpretation and application of rights to particular circumstances are frequently the source of profound debate and conflict” (p. 16). Moreover, “ambitious schemes of judicial review that ignore, unduly minimize or somehow seek to trump such disagreements over the meaning and bearing of rights prove hubristic. They risk making judicial decisions appear arbitrary, thereby threatening the legitimacy of the constitution” (p. 16).

What he says is true, but, again, the argument is too weak. Yes, judicial review risks appearing arbitrary and that, indeed, may threaten the legitimacy of a constitution. Nonetheless, not all threats are so serious that they should be avoided. The U.S. Supreme Court has addressed deep and profound cultural and political conflicts as part of its regular diet for a century or more, and yet the U.S. Constitution still occupies a position that allows for what Jürgen Habermas calls “constitutional patriotism,”71 and the Supreme Court is still the most respected branch of government.72 Granted, the Court has endured crises of confidence in that time, from President Franklin D. Roosevelt's threat to “pack” it the 1930s, to McCarthyite threats to strip it of jurisdiction during the 1950s, to the politicization of appointments to the Court since the 1980s (reflecting primarily the struggle over the right to abortion), to the bald usurpation of power reflected in Bush v. Gore,73 in 2000. Nonetheless, the Court and the Constitution it interprets retain very high levels of political legitimacy. Individual decisions are contested at the time they are handed down but almost all are accepted as legitimate law by almost all members of all branches of government and most of the population.

One may regret the way the Court has developed its constitutional jurisprudence, whether in particular cases or quite generally. One may reasonably think the Court, more or less often, has misinterpreted and misapplied the lessons of history embodied in the Constitution. Moreover, one may regret that certain avenues of moral thought are excluded from the political sphere because they have been declared out of bounds by the Court, which inevitably casts a narrowing, legalistic framework around what were originally purely moral concepts (p. 37). But such limitations and mistakes are the price a country must pay to have a constitution that can embody the lessons of history at the more general level.

Even if some of what one thinks of as mistakes are perceived to be relatively serious, they have rarely involved flouting the principles the Constitution embodies.74 These errors occur almost exclusively in the space of reasonable disagreements about how to interpret and apply the rights protected in the Constitution. And even if some of the mistakes were serious, there is little reason to think that a legislature that sought to give due attention to a constitution's text would have done, overall, a significantly better job of protecting rights. Further, there is value in the development of a constitutional jurisprudence that likely would be missing from legislative activity. The Court's development of constitutional jurisprudence gives constitutional law the kind of coherence that is a necessary condition for its having what Ronald Dworkin calls integrity,75 and integrity is relevant to its moral, political, and legal legitimacy.76

In addition, a court's examination of laws for their constitutionality, even if it is unlikely to result in a decision far from the political mainstream, serves the important function of upholding the Constitution as a check on the political branches, ensuring that they keep the Constitution in view and heed its lessons. As Ackerman says, “[it] is only as the new abstractions are worked up into ‘middle-level’ doctrines defining operational principles and rules that [the high level abstractions inscribed in formal constitutional amendments] can serve as reliable constraints upon normal politics.”77 Legislatures, by contrast, do not amass decisions that are meant to bind them in the future in the way that courts, using stare decisis

Features

Detention Policies: What Role for Judicial Review?

By Stephen I. Vladeck and Greg Jacob

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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.

INTRODUCTION

“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:

WAR POWERS



TARGETED KILLINGS



CYBERWARFARE



COERCED INTERROGATIONS



DOMESTIC TERRORISM



THIRD-PARTY DOCTRINE



NATIONAL SECURITY LETTERS



DETENTION POLICY


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:

Stephen Vladeck

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:

Gregory Jacob

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.


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