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Epstein Goes Another Round on Boumediene v. Bush

Richard Epstein forwarded an email he received from a reader of his NY Times op-ed on Boumediene v. Bush:

Although I disagree with the result in Boumediene, I thought your analysis of it in the Saturday Times was the best I have read. In particular, I share your disdain for the Court’s treatment of Eisentrager. The majority should have just overruled in whatever part was necessary to reach its conclusion, and maybe that would have been all of it, but I don’t think so. Instead, Justice Kennedy has given us an opinion worthy of Justice O’Connor, and I do not mean that as a compliment.

But I thought there were other flaws as well. I agreed with CJ Roberts dissent on the issue of exhaustion of HC remedies, or whatever it is called (I am an attorney but have never practiced HC law or much of anything close to it). How indeed can the Court say the existing legislation fails to protect the rights of the detainees without determining what those rights are? HC will be complicated no matter what the Court had said about Eisentrager because now the lower courts will have to figure out what rights the detainees have, if they are not enemy combatants. And I thought the majority did not go far enough in trying to limit the case to the facts of Guantanamo. Not that such a technique ever works anyway, but it will usually at least slow down future justices from extending a case, and will almost always stop the lower court judges from straying. But now future courts and Courts will can do to Boumediene what this Court did to Eisentrager, and then HC can be applied to the battlefield. After all, look at what Griswold hath wrought, whatever your opinion of its progeny. From whence springs my paranoia? From the work “likely” in this sentence from Boumediene: In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody.  Now putting aside for a moment that Boumediene was itself unprecedented, as the majority acknowledged, the use of the word “likely” gives a future Court plenty of room to wriggle through and decide that the predictions of the majority in 2008 turned out to be incorrect. That is a license to engage in judicial mischief, which I think we can agree this Court did with Eisentrager.

I also think the Court has unwittingly given its opponents a few powerful weapons. The first is a legal argument: now that HC has been extended in the event of a purely foreign conflict, it can be waived in the event of a purely foreign conflict. The domestic limitations of rebellion and insurgency no longer apply. I hear Justice Scalia’s point, but I think the extension of HC in Reid and Ross is a different matter, because one can argue that HC follows citizens (or those entitled to be treated as citizens) when they leave the country, in certain limited circumstances. But this is different: now you either have to conclude that HC applies in a situation in which Congress cannot suspend it or you conclude, as I have, that Congress can suspend coexistent with HC’s scope, which means Congress can suspend other than in cases of rebellion or invasion. That is a far worse threat to liberty than what the dissenters in Boumediene favored.  The second is a practical point: now there is no longer any pressing reason to close Guantanamo. The detainees have HC rights. End of controversy.

If you have read this far, I thank you. I would also appreciate any thoughts you might offer in response to my email. Again, I really know nothing more about HC than what I have read in Boumediene and Eisentrager (which I pulled up and read afterwards), but I take an interest in these issues as I think all lawyers and other folks should.

Respectfully, Joe Dibari (nom de cyber)

To which Epstein responds:

My initial comment is this: your letter is longer than my column, which shows the limitation of the art form. There is always something that has to be left on the cutting room floor. And in this instance it is the complexity of the task that remains. In one sense the most difficult questions of constitutional law are those that the Constitution requires you to answer but gives no answer to itself. In this instance there is some supposition that we know the boundaries of habeas corpus which are always fluid, and therefore know what can or cannot be suspended. Well in and ordinary war we do, but in a situation where the jurisdictional fact is unclear -is this person an enemy combatant-we don’t and give the importance of the question we should invest a good deal of effort to get it right.

This inquiry is not unique: the word “due” in “due process” is a word for the ages which demands flexibility but does not supply it in all cases. So we all become closet utilitarians of sorts. We run a cost benefit analysis and see if we can break down cases into types. The battlefield cases will never come to pass, because of the obvious peril to life and limb. And if there is any log on POWs most of those will not get anywhere at all. And as in other cases, given tehf ear that everyone will say that I was just there by chance, we will start to see the videotapes. Judges will be very wary if a 1000 men are captured in an engagement, and each one makes the same defense. But on the other hand, when the persons detained are turned in by bounty hunters, the process will kick in in just about every case, which means that documentation will be the order of the day. And I don’t regret that if the error rate is exceedingly high as it often is in these cases.

The key to getting this right is cooperation from the administration, to devise procedures that take into account all forms of error, and not those which are intended to insulate the military from any and all review, including that of its own internal justice system, which generally favors more process than the administration has done. So we don’t try to solve the whole question in a gulp. Rather we try to take constructive steps, one at a time.

Richard Epstein