Much has already been written about the impact of last week’s Supreme Court’s decision, Boumediene v. Bush, on the courts, the detainees, and the Bush Administration’s “war on terror”. I would like to draw attention to something that may be between the lines—judicial warfare. The majority’s somewhat squishy rejection of the the Detainee Treatment Act (DTA)’s provisions for judicial review of detainees’ “enemy combatant” status started me thinking about this.
The DC Circuit, in ruling against Boumediene, faced two questions: whether the Guantanamo detainees had any Constitutional right to habeas corpus, and if so, did the Detainee Treatment Act (DTA), having stripped them of that right under its formal name, provide an adequate substitute? The Circuit answered the first question with a “no”, and left the second unanswered. This judicial practice of avoiding questions when possible is a long-standing one, and, in general, not a bad idea, I think.
Normally, the Supreme Court, having decided that the detainees do indeed have a Constitutional right to habeas corpus, would send the case back to the DC Circuit. If that Court found the DTA to be an adequate substitute, the detainees would again appeal to the Supreme Court, where the Justices like to have the benefit of lower court opinions when they address a question.
But in this case, Justice Kennedy, writing for the Supreme Court majority, noted that some detainees have been held as long as six years. The DC Circuit would almost certainly have held the DTA, with its reliance on the infamous Combatant Status Review Tribunals (CSRTs), to be an adequate substitute, and the question would have ended up before the Supreme Court again. But, as Worthington points out, this would have taken another year. The Kennedy majority, therefore, decided it could forego the benefit of the DC Circuit’s opinion, and held that the DTA did NOT provide an adequate substitute. In other words, “let’s get this process moving”.
This sent Roberts into a rage, although the majority was certainly within its rights. It happens in all courts—it’s called bypassing normal procedure “in the interest of justice”. In his dissent, Roberts threw the concept of expedition back at the majority. Habeas corpus proceedings, he noted, start at the district court level, and appeals can be had to the circuit courts and then to the Supreme Court. The DTA streamlines this by skipping the district courts.
That’s only one issue, however. A procedure substituting for habeas corpus must grant the reviewing court all the tools it needs to do justice. This means the power to review facts and grant relief, including release from custody, when appropriate. These powers were not explicitly granted to the DC Circuit by the DTA. However, as the Kennedy majority pointed out, the DTA is vague enough to be possibly interpreted as providing the DC Circuit with all the required tools.
So why find the DTA to be unconstitutional, another result which is to be avoided when possible? Kennedy claims it was because there is too much vagueness in the DTA; the Court, by reading in one power after another, would stretch the meaning Act beyond the intent of Congress. This is also to be avoided.
But the real reason may be judicial warfare. We have already noted that the DC Circuit would have almost certainly found the DTA to be an adequate substitute for habeas corpus. In fact, the DC Circuit, along with the 4th Circuit, has a reputation for being quite “conservative” (read “right-wing-ideologically-based”). I think the Kennedy majority did not want the DC Circuit deciding the facts and granting relief to the detainees.
A long-standing restraint on our appellate courts is that they do not disturb factual findings of a lower court, nor the relief it grants, unless the lower court has abused its discretion—sometimes called making “clearly erroneous” or “arbitrary and capricious” decisions. That’s a pretty high bar. If the DC Circuit consistently ruled against detainees, even in questionable cases, there would be little the Supreme Court could do. By making habeas corpus available, the Kennedy majority has placed decisions regarding facts and relief in the hands of the DC district court, where there is still a reasonable population of less-ideologically-motiveated judges. That would mitigate the DC Circuit’s bias against the detainees—and would be a skirmish in a judicial war.
To the extent that DC Circuit judges are more ideologically motivated than those on the District Court bench, the efforts of Republican presidents to shape policies through judicial appointments have been partially successfull. District court judges who follow the law impartially are unlikely to be nominated to a higher court by a Republican. If McCain wins this November, it is likely that the present skirmish will be a footnote in judicial history, as the present Supreme Court “gang of four” (Scalia, Thomas, Alito, and Roberts) becomes the gang of five, putting victory in the hands of the ideologues for decades.
BOB MOSS is a retired computer programmer, current hiking trail builder and kibitzer on legal topics. The first legal issues to arouse his interest were trail use on public lands and protection of open space; after Bush v. Gore, his interests expanded to equal protection, law of war, and since the Bush Administration’s disdain for the law is unbounded, just about everything else. He may be reached at