FEATURES:
Terrorism, the Military, and the Courts

By Benjamin Wittes

What kind of process is due detainees?

The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they managed instead to locate and detain his wife and children, who were living in a remote area of Afghanistan. For several days, they interrogated his wife at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: “We then informed [her] that the plane was there to take her three sons to Saudi Arabia unless she told us where her husband was and his aliases. If she did not do this then she would have two minutes to say goodbye to her sons. . . . We left her for ten minutes or so with paper and pencil to write down the information we required.” Having threatened, in essence, to kill her sons — for nobody doubted what the Saudis would do to them — the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening.

What followed was a protracted habeas corpus action in the U.S. District Court for the District of Columbia. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops who detained him had shouted to the commanding officer to call his men off “unless you want to take back a corpse.”) Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The Bush administration, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case and the Supreme Court — for now, at least — has not intervened.

Should the courts hear it, notwithstanding an act of Congress that explicitly precludes review? If so, what should they hold? Is such a tactic — garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime — ever legitimate? And who, in a society committed both to law and to victory in a global struggle against terrorism, is to be the judge?

The answers to these questions may seem obvious to many readers. Yet in the years since September 11, 2001, something of a gulf has opened between the views of elites — mostly but far from exclusively liberals — and majority opinion on these questions. That gulf was only accentuated by the Supreme Court’s Hamdan opinion,¹ the resulting Military Commissions Act, and President Bush’s disclosure of the cia’s secret prisons for high-value detainees. Public opinion has tended to regard these issues pragmatically — tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context. While public opinion data is nuanced, the Bush administration’s supposed menace to civil liberties and human rights has not had traction as an electoral issue; to the contrary, its opponents in Congress have feared electoral retribution for hampering the fight.²  For prevailing opinion in the academy, the press, and the human rights world, however, the standards of international humanitarian law represent moral absolutes, the administration’s flexible approach to them an affront to the rule of law, and the courts the principal line of defense against excessive executive power and its abuse. After all, there are certain things that civilized governments just don’t do. And in functioning democracies, victims of such misconduct, no matter how odious these victims may be, have access to the courts for redress — the threat of tyrannical government being ultimately greater than whatever threat even the worst criminals or terrorists may pose. In the end, the rules that limit governmental power have to be tough and the courts have to be available to make them real.

But let me now confess that I have adjusted somewhat the facts of my opening anecdote, which is, indeed, the true story of the capture of an uncommonly evil and dangerous man: The plane was really a train; the country was not Afghanistan but Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was not an al Qaeda figure but perhaps the greatest mass murderer of all time: Rudolf Höss, the commandant of Auschwitz. And the resulting habeas litigation, de rigueur today, was beyond anyone’s wildest imagination then.³ The stark reality is that absent an interrogation tactic that “shocks the conscience,”⁴ Höss — like his colleague Josef Mengele — might well have escaped justice, Nuremberg lost its star witness, and history denied his crucial accounts of the factory where 1.1 million people died.

If the tactic — and the absence of any judicial review of its use — does not suddenly seem more defensible, stop reading now. You have proven yourself both a principled opponent of abusive interrogation and truly committed to judicial oversight of legally dicey wartime practices. This essay is not for you. While I admire the certainty of your nonconsequentialism and your faith in judges, I share neither and can only thank God that neither did the British soldiers who captured Rudolf Höss.

This essay, rather, is for those who live in that gulf between the centers of gravity of elite and mass opinion — those not content to give the president a free hand in a messy, unending quasi-war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get — and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable to the charge of having forsaken American values and to the charge of having done so with insufficient boldness to enable the executive branch to win. In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the war on terror now in the context of stable, democratic, constitutional government, I venture the guess that it is within this space — not with a dogmatic commitment to executive power, nor with an undying faith in the wisdom of judges — that it will do so.

My purpose here is to sketch a vision of judicial review in the war on terror for those who live in this space. The theory, like the conflict itself, is messy and inelegant; it lacks all of the purity of either the administration’s infatuation with presidential power or the civil libertarian love affair with judicial power. It lacks as well completeness, for it is predicated explicitly on the notion that we have not yet built the legal and doctrinal architecture that will govern this area. I do not pretend to know in full those details and mistrust grand claims as to the ultimate design. 

Put simply, I mean to argue that while meaningful, probing judicial review has a more substantial place in this war than the administration allows, it has a far more limited one than many civil libertarians and human-rights advocates imagine. International conflict by its nature resists the application of clear, uniform rules enforced by judges neither steeped in the realities and exigencies of warfare nor well-positioned to evaluate the relative costs and benefits of greater and lesser muscularity in detention policies. The effort to create and apply those rules carries dangers their advocates often fail to appreciate. In any functional system of judicial oversight, therefore, jurisdictional limits must be crystal clear and allow the executive branch adequate flexibility for creative action, which — as the Höss example vividly shows — is not always pretty. In particular, judicial review should be designed for the relatively narrow purpose of holding the executive to clearly articulated legislative rules, not to the often vague standards of international legal instruments that have not been implemented through American law. As such, habeas corpus is the wrong legal mechanism through which to accomplish effective judicial oversight of key detention and interrogation policies and tactics. The better mechanism, I shall argue, is a system of statutorily authorized direct appeals from administrative actions concerning detention and from convictions by military commissions, a system that builds and elaborates on the skeletal one that has already come into being in law and regulation. Concerning interrogation tactics, I shall argue that the proper scope for judicial review of actions overseas is narrow but significant and that the best check against executive abuse is a congressional, not a judicial, one.

The lay of the land

Before turning to competing visions of what judicial review in this area ought to look like, let us step back for a moment and contemplate its reality to date — a reality that, more than five years after the September 11 attacks, has not yet come clearly into focus. This obscurity stems from a curious dichotomy between the Supreme Court’s actual actions so far in this area and the doctrinal capacity of those actions in the future to justify extensive judicial supervision of warmaking. Taken on their own, the Court’s pronouncements have been far less consequential than many commentators imagine. On the other hand, they contain doctrinal seeds of a far more aggressive judicial posture — one that several of the justices clearly regard as desirable. As a result, the Court has positioned itself for a veritable sea change in the relationship between the federal branches in wartime. Yet it has skillfully done so without closing off any policy options for either the executive branch or the legislature in the short-term.

To understand this dichotomy, consider the manner in which the high Court decided both the Rasul⁵ case in 2004, in which it initially asserted jurisdiction over Guantanamo, and the Hamdan case last year, in which it struck down the administration’s plans for military commissions at the base. In both cases, it acted on statutory, not constitutional, grounds, meaning that if Congress didn’t like what it had to say, it could change the law. In neither case did the Court forbid the policy course the administration had chosen to take; for all the attention the cases garnered, they precluded neither military detentions at the base without charge nor trial by tribunals lacking the normal safeguards of both the civilian justice system and the general court martial. The administration left both cases having suffered dramatic setbacks that amounted in practical terms merely to a requirement to seek congressional permission for what it wanted to do — congressional permission that proved, in both cases, relatively easy to obtain. Such is the oddity of these celebrated victories for the rule of law — for so all right-thinking people proclaimed them — that, should a similar situation arise again, they collectively would not prevent the administration from acting more or less as it did in detaining and interrogating, sometimes brutally, such a bevy of terrorist suspects as it rounded up in Afghanistan in 2001 and 2002. The major constraint that exists today with respect to interrogation tactics, the so-called McCain Amendment, is a congressional enactment, not a Court opinion. Concerning detention, the Court has interfered hardly at all.

It has, however, noisily carved itself a place at the table — though because the rulings have all been statutory, even this step has been somewhat tentative. On its face, Rasul stands only for the proposition that the habeas statute as then written extended to Guantanamo. Nothing about the decision precluded Congress, the body that passed that law, from narrowing its scope to restore the status quo from before the decision, which is precisely what Congress did in the Detainee Treatment Act of 2005 (dta). Similarly, in Hamdan, in which the Court found it had jurisdiction to consider the military commissions notwithstanding the dta, it once again eschewed a constitutional holding. It ruled merely that Congress had not been explicit about meaning to throw out pending cases from Guantanamo, as well as prospective lawsuits. Congress responded in the Military Commissions Act by stating clearly that it meant to throw out pending suits as well.

Still, in both cases, the Court intimated without deciding that a more fundamental basis for its jurisdiction exists as well. In Rasul, for example, Justice John Paul Stevens, having determined that the habeas statute reached Guantanamo, added the following curious paragraph:

Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run, and all other dominions under the sovereign’s control. As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the Court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” . . . Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.”

Some habeas jurisdiction is, by all accounts, inherent in the Constitution, which makes explicit reference to it. And case law and commentary alike suggest that this inherent jurisdiction coincides with the Court’s habeas reach at common law. So Stevens seems to suggest that if the habeas statute didn’t reach overseas detainees like those at Guantanamo, the Constitution might create jurisdiction anyway. Similarly, in Hamdan, the Court reserved the question of whether constitutionally-based jurisdiction would have existed even had it applied the dta’s jurisdiction-stripping provisions to the case. In other words, in both cases, the Court altered the legislative status quo, making its jurisdiction a matter of statutory default and forcing Congress to legislate it out of the picture if it chose while holding out the possibility that such legislation might be futile and that the Court would then fall back on a more fundamental legal basis for intervention.

Whether the votes exist on the Supreme Court to go this extra step is anyone’s guess. The D.C. Circuit Court of Appeals ruled in February that the Military Commissions Act successfully stripped the Courts of all habeas jurisdiction over Guantanamo and that it did not violate the Constitution in doing so.⁶ The Supreme Court declined for now to review this ruling. But three justices — Stephen Breyer, Ruth Bader Ginsburg, and David Souter — dissented, citing the Stevens language quoted above and saying that the detainees “plausibly argue that the lower court’s reasoning is contrary to this Court’s precedent.” And two other justices, Stevens himself and Anthony Kennedy, made clear they considered the detainees’ claims premature but were not commenting on their merits.⁷

The consequence of this series of events is that the Court’s holdings do nothing and everything all at once. Read narrowly, they neither preclude nor require any particular policy. They do not create substantive rights for overseas detainees either based on the Constitution or based on international law (except in the sense, since altered by Congress, that Hamdan interpreted provisions of the Uniform Code of Military Justice as implementing Common Article 3 of the Geneva Conventions). They don’t even require that judicial review be an operative feature of any regime. As Justice Stephen Breyer put it in Hamdan, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ . . .  Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Taken at its word, the Court is merely interpreting statutes so as to create a legislative buy-in for executive-centric policies, forcing the president to seek Congress’s okay before doing what he tried to do on his own.

Yet taking the Court at its word may well prove foolish. For the justices have also laid the groundwork for a far more aggressive intervention. The Court has reserved the question of whether the Constitution or international law creates enforceable substantive rights for detainees. It has also, as noted above, reserved the question of whether its own jurisdiction ultimately has constitutional roots. And critically, it has held out the possibility that overseas jurisdiction extends beyond Guantanamo Bay. This last point bears some emphasis. The Court’s flirtations with undertaking a major role in overseeing wartime detentions would be something of a quirk were they predicated on the admittedly peculiar status of Guantanamo — which has been leased in perpetuity to the “exclusive jurisdiction and control” of the United States. Were this the case, the administration could simply weigh the inconvenience of judicial review and, finding it too onerous, bring no more detainees to the facility and be done with it. But Rasul ever so carefully elides the question of whether its holding ultimately depends on any specific feature of Guantanamo itself, and the Court certainly left itself wide space to hold otherwise. “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians,” Justice Stevens wrote. The habeas law, “by its terms, requires nothing more.”

In other words, the specter of a vastly different judicial posture haunts the executive. Judicial review in the war on terror could turn out to be a freewheeling exercise in which the justices assert an inherent authority to review executive actions, divine rights to apply with that jurisdiction based on due process, and any number of vaguely-worded international humanitarian law principles not clearly implemented in U.S. law, and allow their own power to follow the military’s anywhere in the world. Such a posture would constitute an earthquake in the relations among all three branches of government. And the doctrinal seeds for it have all been planted. Whether they ultimately take root depends on factors extrinsic to the war on terror — particularly the composition of a Supreme Court now closely divided on these questions — as well as the manner in which the administration presents these issues to the Court in the future.

The administration has chosen to take the Court at its word — the latest move in an impressively long line of refusals to hedge its legal bets. It sought and got from Congress a law under which habeas corpus is tightly constrained and judicial review otherwise limited. It reconstituted its military commissions. It clarified that the Court’s application of Common Article 3 to the conflict with al Qaeda need not necessitate any change in interrogation policy and that all but the most severe violations of it in any event do not constitute war crimes under American domestic law. And critically, confronted with a Court that openly flirts with an active posture in this conflict, it did little to ensure that its treatment of detainees warrants the kind of deference for which it asks. That is, it did nothing to bolster the internal review mechanisms that establish a detainee’s status or periodically review it. It remains to be seen whether all of this will satisfy the Court, which will eventually have to consider the constitutionality of the Military Commissions Act. I, for one, very much doubt it will satisfy a majority of justices. At a minimum, the administration is playing a very dangerous game for the future of the executive power it holds so dear. After all, it is hard for a court to defer when there is nothing, or little, to defer to. And under the architecture the administration has partly built on its own and partly won from Congress, detainees are bound to come before the courts having had only the most cursory hearings with no assistance from counsel, making allegations of horrific mistreatment, and facing the prospect of detention for life without further judicial review. Whatever inclination to restraint the Court might have — and it isn’t much of one — will be sorely tested as these cases present themselves.

The judicial function, broadly construed

To the modern American — particularly, the liberal — any case against broad judicial review inevitably involves an uphill climb. Americans, after all, have grown comfortable with judges making all manner of decisions regarding contested, politically loaded questions. Judges decide abortion policy, the permissible use of race in university admissions, whether gays can marry, how to count votes, and countless other matters that affect Americans’ day-to-day lives. Against this backdrop, it hardly seems a novelty that the courts might resolve questions arising over the legality of detentions and interrogation tactics — matters that, after all, lie at the core of any reasonable understanding of liberty and restraint on governmental power.

Such an approach to judicial power in this area actually has two interconnected purposes. One involves the right of individuals detained to their day in court — that is, an ability to contest their status before a neutral tribunal. The other involves the power of the courts themselves to pronounce on the legality of administrative action and thereby compel compliance with legal norms the administration may be flouting. That is, judicial review of wartime detentions is seen, depending on the argumentative context, as both a means of holding government accountable to the law and a means of vindicating and freeing innocent people who may have been erroneously detained. Both of these purposes have strong claims on the American conscience, for we are a society of law and a society whose specific vision of law historically emphasizes procedural justice. But neither of these premises quite justifies the kind of pervasive judicial review we take for granted elsewhere in American life, in which a person aggrieved by a supposedly illegal or unconstitutional law or policy can haul the government into court to justify it and — if the government cannot do so compellingly — have it declared inoperative.

There is, for starters, the problem of the complainants — or victims, if you prefer — of the supposedly illegal actions under challenge. With a few isolated exceptions, they have all been aliens overseas. And one should pause at least a moment and consider by what right an alien with no connection to this country save the desire to destroy it may haul its sovereign into its own courts to press legal claims. One can engage this question, as the federal courts are now busily doing, at the level of legal doctrine or consider it at a more philosophical level. Both approaches, in my view, lead to the same conclusion: that no such right exists, and that that we should therefore consider judicial review in this area as a matter of legislative policy, not a question of constitutional command, inherent judicial power, or the historical reach of the writ of habeas corpus.

The doctrinal question, for all the smoke thrown up around it, is not a hard one. Back in 1950, the Supreme Court confronted the case of German prisoners of war convicted of war crimes by American military commissions. The Germans sought habeas review. But Justice Robert Jackson, writing for the Court, famously dismissed the case, writing: “We are cited to no instance where a Court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”⁸ In Rasul, the Court backhandedly overruled this case, Johnson v. Eisentrager, on the statutory point, at least as to detainees at Guantanamo. And it may yet do so as to the constitutional holding as well. There is, however, nothing extraordinary about the administration’s insistence that the Court’s jurisdiction has geographical boundaries. At least until Rasul, it was the Court’s insistence as well. And it has always seemed odd to me to blame the Bush administration for relying, in the genuine crisis that followed September 11, on the clearly stated view of an esteemed personage of the Supreme Court’s history, writing a majority opinion in a quite-famous holding of the Court itself.

This doctrine, moreover, reflects a philosophical understanding of the function of courts that warrants, in my opinion, something other than the opprobrium of all decent people. The Constitution is a social compact among the people, the states, and the national government it created. An American citizen is party to that compact wherever he goes in the world, and therefore retains a claim on the adjudicatory power of the courts when mistreated by his government abroad. The alien domestically is, to a lesser but still considerable degree, also party to the compact — subject to American law, entitled to many of its rights and protections, and therefore entitled as well to have its courts resolve his disputes with its sovereign. But not everyone in the world is a party to that compact. And it’s hard to see why the Constitution promises people so wholly outside of the compact as al Qaeda or Taliban operatives overseas any of its benefits at all. Why specifically, we should ask, does it entitle them to the privilege of invoking the jurisdiction of American courts?

I can conceive of only two possible answers to this question, and they are closely related. The first is that the Constitution binds the executive branch wherever in the world it operates, and that judicial review must necessarily follow. The second is that judicial review somehow flows from the fact of detention by American forces. That is, someone who suffers injury at the hands of an America behaving illegally under its own or international laws has a claim on its legal system that a normal foreigner abroad would not have. But both of these arguments, if accepted, would prove too much. For the family of a person killed in an errant missile attack has suffered a great deal more than someone merely detained, and has certainly been the subject of exertion of American power no less subject to the Constitution than the person detained. Yet at least under current doctrine, neither the alien’s injury nor the illegality of the government’s conduct which led to the tragedy — however egregious the illegality may have been — would induce the courts to entertain such an action. There are untold numbers of people abroad who might ascribe their misfortunes, real or imagined, to American governmental behavior alleged to defy legal norms. Why is this area so different that jurisdiction unthinkable in those instances is constitutionally required here?

I don’t mean to make a camel’s-nose-under-the-tent argument — that allowing habeas jurisdiction will lead willy-nilly to extensive judicial supervision of war planning. I don’t doubt the judiciary could open the door just a crack and entertain habeas claims but not others. My point, rather, is that there would be little principled reason to do this. To advocate that the courts draw this particular line allows the extent to which the reach of courts to overseas detentions and interrogations to become a policy question, and not — unless one is truly willing to open the floodgates — a question of principle. Those advocating freewheeling judicial review in this area merely wish to shift the forum for that policy judgment from Congress to the courts themselves.

A broad conception of judicial review in this conflict also suffers from an unrealistic assessment of judicial competence and capacity to evaluate military actions. This is true both because of the limits of judges as people untrained in military matters and, more important, because international conflict resists the rule of principle that judges are, at their best, adept at managing. This point is an uncomfortable one. How satisfying it is to talk about war and military actions in the civilized language of conventions, statutes, war crimes, and customary international law! And we shouldn’t diminish the importance of such vocabulary, which is useful, moral, and worthy.

Yet if we are entirely honest about the matter, we cannot escape the fact that legal rules are inevitably less absolute, less truly legal, in this context than, for example, in the domestic civilian context. The Nuremberg trials, after all, pervasively depended upon ex post facto justice of the sort most condemned by the American Constitution — yet we see it as a great victory for the rule of law. In the name of higher justice, the world proclaimed rape a war crime after the fact in evaluating criminality in the former Yugoslavia. Even the most dogmatic human rights advocates will allow that with a ticking nuclear bomb in New York City and a suspect in custody, all bets are off as to interrogation tactics; they contend in this situation merely that the law shouldn’t countenance the step that any patriot or humanitarian would take to avert a catastrophe. Abraham Lincoln defied the chief justice of the United States over habeas corpus, and history views Lincoln as the country’s greatest president and Chief Justice Roger Taney as one of the true villains of his era. How many human rights activists today realize they are deploying the same arguments that Taney used then? And would they have wanted them then to prevail? The subject matter of warfare has a way of making — and not only in extreme cases — legal principles look a bit flabby.

Discerning the reason requires no great imagination: The stakes are too high for anything else. A society can accept in the name of liberty the consequences of allowing even the worst criminal the rights we would all want were we facing trial. The worst that will happen is he escapes justice. But international conflict at its core is about avoiding harms prospectively, not retroactively accounting for them. And no society can afford principled rules concerning those steps on which its ultimate fate or interests depend (unless the principle is that the ends justify the means). I venture the suggestion that the interrogations of Khalid Sheik Mohammed and certain other high-value detainees fit easily within this category. To subject such decisions to the broad form of judicial review that human rights advocates demand requires one of two steps. One can either truly subject them to principled rule, or one can ask judges to behave like consequentialists and validate with the imprimatur of law the ugly decisions the executive branch sometimes has to make. The first option is, in practical terms, a nonstarter: What president is really going to forgo the information the highest-value detainees may have stored in their brains? The second option, I would argue, should be at least as uncomfortable as the possibility of a more modest conception of the judicial function in the current conflict. Would we really want a panel of judges, far from the action and with no conception of how vulnerable Frau Höss might have been to more traditional interrogation, to declare that what those British soldiers did to her was lawful? There is an honorable place — one that too-easy recourse to the courts obliterates — for judicial silence, a place that neither precludes options nor validates them.

All of this, the advocate of a broad vision of judicial review may argue, is pretty speculative stuff. There is no evidence so far, she might argue, that judicial review has impeded the war on terror in any significant respect. This person might challenge us to identify any horror stories of intelligence lost or terrorists escaping capture because of the inhibitions imposed by judges — or self-imposed by the executive because of the fear of judges. Rather, she might point out, the effect of habeas so far has been salutary: sustained pressure on the administration to move toward a fairer and more accountable system. On the other hand, it is not hard to catalogue abuses by the military and the cia, Abu Ghraib being the most infamous. Given this balance, it seems perverse to focus on hypothetical dangers posed by the judiciary, rather than actual dangers posed by the executive — dangers against which enhanced judicial power offers a check.

We should give this critique its due: A broad concept of judicial review could prove harmless in the long run. Other countries, most notably Israel, have confronted terrorism with comparatively robust judicial oversight and have not tied their own hands unduly. Yet this critique is valid only because judicial review has so far amounted to so little in practical terms. Judges, as I noted above, have not foreclosed options to the administration, either by forcing the release of inmates or by indelibly imposing legal regimes that would actually inhibit robust action. Were they to begin imposing real restraints, we must anticipate that those restraints would carry consequences. And it is a peculiar defense indeed of the practical workability of a robust conception of judicial review to point out that it hasn’t, in fact, constrained executive action.

Indeed, this critique ironically points to one other reason for skepticism of habeas review as a promising strategy for protecting innocent people swept up in the war on terror: It hasn’t quite worked that way. Since the first detainees came to Guantanamo in the wake of the American intervention in Afghanistan, habeas litigation has been continuous up and down all levels of the federal court system. Taken together, these hundreds of cases have produced orders to release zero detainees. They have admittedly served the important function of forcing the administration to moderate its policies, to put in place administrative structures to more rigorously assess the detainee population, and to go to Congress to get certain rules written into law. The new administrative structures have, in turn, led to the release of dozens of detainees. But it is important to identify what all of this litigation has not accomplished: For the person erroneously detained at Guantanamo, access to federal courts has not meant freedom. It has at most pushed the policy process toward the creation of those structures that have meant freedom. If one’s goal is ultimately a legal architecture that separates the combatant from the noncombatant, it is on the integrity of those structures that one should focus.

The necessity of a judicial role

So why, then, have judicial review in this area at all? Why not, with the administration, see the current conflict as an executive branch affair different from wars in the past only insofar as requiring more flexibility and creativity on the part of the president and his agents?

The answer to this question lies in the inadequacy of war as a legal model for the current conflict. I don’t mean here to explore fully the now-hackneyed debate over whether the war on terrorism should be understood as war or as law enforcement. It clearly has elements of both and all of the hallmarks of neither. And as a short-term legal model, the war paradigm worked reasonably well. After all, the initial action in the war on terror involved a major overseas military deployment, alliances with armed groups, and hostilities with other armed groups. It involved toppling a government and installing a new one. More generally, it involved the projection of American force all over the world and followed a major attack on American soil — including the seat of the American military itself.

But the model was always imperfect. And the war on terror has, in any event, now entered a different phase, one in which the spasmodic bursts of overt military power that characterized the earlier phase and looked most like traditional warfare have given way to something more elastic that takes place in slower motion and that requires a more innovative long-term legal approach. Specifically, the detention rules contemplated by the laws of war just don’t fit very well. While they sufficed in a pinch, they have come to fit like an old worn overcoat draped over a shivering child who walked outside underdressed. The tailoring for another wearer is obvious. The age makes the application seem almost quaint. The flaws in the fit create gaps which the cold air rushes to fill. Nobody looking at this child would imagine his parents wanted him to wear that coat for the rest of winter.

For all the administration’s commitment to the war analogy, its ill fit has become glaring, particularly in the area of detentions. It starts with the fact that the laws of war generally presume there exists little or no doubt that a captured enemy fighter is, indeed, a captured enemy fighter. Detentions in the current conflict, by contrast, are rife with factual ambiguity and uncertainty. The laws of war presume enemy fighters to be honorable soldiers, and no negative moral evaluation of them attends their detentions. By contrast, detention at Guantanamo involves a frightful assertion of individual moral culpability; labels like the “worst of the worst” and “bad people” issue from the highest levels of American government.⁹  Most fundamentally, the laws of war presuppose detentions to be a temporary incapacitation of the fighters until the warring parties make peace and arrange their repatriation. No such presumption makes any sense here. This conflict seems like a permanent state of affairs and, if it someday does end, it will end only because all members of al Qaeda are caught or killed. Releasing them then would only reignite the conflict. The administration can kid itself that it is merely applying the laws of war. But something else is going on too: the adjudication of the justice of incarcerations based on contested facts. And that is a subject that judges know something about.

In tacit recognition of the hybrid nature of the war on terror, the administration’s position has actually moved considerably in recent years. Early on, the administration advocated a pure view of executive power, one in which the president wielded authorities inherent in his constitutional role as commander in chief of the military and required no congressional backing other than Congress’s initial authorization to use force against al Qaeda. In this view, the judiciary played no legitimate role at all. Following Rasul and Hamdan, however, the administration actively sought congressional involvement and, in seeking to eliminate habeas petitions, accepted a limited form of appeal to the D.C. Circuit Court of Appeals to replace it. The result is that verdicts from military commissions are subject to judicial review, as are determinations by the Combatant Status Review Tribunals (csrts) that in Rasul’s wake evaluated whether each detainee at Guantanamo was properly classified as an enemy combatant. These types of appeals are only just beginning now. The commissions have so far convicted only one detainee, David Hicks, who accepted a plea deal and therefore waived his appeals. And the other detainees pursued their habeas actions until they had exhausted that option before resorting to the direct appeals Congress had given them to challenge their detentions. The vitality of this category of appeals, therefore, remains very much up in the air. Still, these appeals are part of the system the administration and Congress have put in place. Some form of judicial review of these detentions is now a matter of near consensus.

But the administration’s acceptance of a role for the judicial branch is more of a grudging concession to political and jurisprudential reality than an effort to imagine what the most effective judicial involvement would look like. For the contemplated judicial review is limited. Under the dta, the courts may evaluate “whether the status determination of the Combatant Status Review Tribunal with regard to [the detainee] was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government’s evidence).” To “the extent the Constitution and laws of the United States are applicable,” the law also allows the courts to examine “whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”¹⁰

Because the csrt procedures are not especially rigorous, compliance with them is not necessarily comforting. The detainee has no access to counsel and no meaningful ability to confront evidence against him. Detainees’ ability to present their own evidence has been, in practice, often impaired. And csrts for similarly situated detainees appear to have yielded inconsistent outcomes.¹¹ What’s more, the procedures themselves, which are merely regulatory in nature, are subject to change at any time. One can easily imagine a detainee slipping through a csrt as a result of bad intelligence he was unable effectively to rebut — and tough to imagine the judicial review authorized by current law acting as much of a check on that possibility. Subsequent decisions by the military’s Administrative Review Boards (arbs), which act as a kind of annual parole committee to examine whether a detainee still poses a threat, operate subject to no judicial review at all. So the consequences of judicial impotence in the csrt reviews are very great indeed. Assuming the mca effectively precludes habeas jurisdiction, no judge will ever see the case again.

Nor is the authorization for the D.C. Circuit to review the csrt procedures for compliance with American statutory or constitutional law terribly useful. It isn’t clear what American law applies to aliens at Guantanamo; that fact is precisely what enabled the administration to make up its own set of rules in the first place. The absence of applicable law is, in fact, the heart of the entire problem. Merely authorizing the courts to apply whatever law may exist neatly avoided the admittedly difficult step that might have helped: legislating new rules to govern a novel situation. Judicial review without clear underlying rules can predictably serve neither the cause of separating the combatant from the civilian nor the cause of holding the executive to the rule of law. The rule of law, after all, presupposes some law to rule. The paucity of any completed appeals under this provision to date makes it unclear how, in practice, the mechanism will function. But the fear of human rights groups that it will not prove robust seems warranted. In the absence of any clear statutory standards, it seems like a recipe for judicial deference to weak executive procedures.

These procedures, I want to stress, comply with international law — or, at least, deviate from it only in trivial ways. The csrts, in most respects, grant detainees significantly greater procedural rights than those contemplated by the Third Geneva Convention. In a true wartime setting, they would be more than adequate. And to be fair, they have been significantly more effective than many human rights advocates, who deride them as kangaroo courts, allow. The csrts freed 38 people, the arbs an additional group. Flawed as they are, these tribunals free a far larger percentage of those who come before them than do the federal courts in criminal matters, not to mention in the habeas cases that have proliferated since Rasul. That said, I sympathize with the human rights advocates who believe that the review they offer is inadequate for these circumstances. Deferential review of anemic procedures yielding decisions with enormous consequences for the liberty of individuals captured under murky circumstances is not a recipe either for justice or for public confidence in American prosecution of the war on terror in the long run.

It is critical, however, to diagnose the problem precisely. The central malady is neither the supposed lawlessness of the Bush administration nor the anticipated absence of habeas corpus as the front-line of judicial review. It is, rather, that the entire structure is significantly underdeveloped. The badly conceived judicial-review mechanism is only one feature of a larger review system crudely forged from an inadequate model. It is neither the main flaw nor will correcting it alone do much good.

The proper scope of review

We come, then, to the question of what judicial review ought to look like in the war on terror if one accepts that it should exist more robustly than it does on direct review but should not be of an unbridled or general nature, as human rights advocates wish to see. I mean to advance the modest proposition that Congress should write into law the procedures that consign people to detention for life at Guantanamo, make them significantly more generous to the accused, and structure judicial review for the narrow purpose of holding the military accountable to these clear statutory commands. That this idea seems, in the current political climate, extreme to both sides in the debate I can attribute only to the reining degree of polarization over these questions.

To advocates of the administration’s position, this vision of judicial review will smack of a deep and unwarranted erosion of presidential authority in wartime, because it envisions a more trial-like procedure at the time of intake to Guantanamo — a procedure which federal judges ultimately oversee — as well as an ongoing judicial role during the course of any subsequent detention. This objection may have made sense at the outset of the conflict, when American forces were rounding up large numbers of detainees, and nobody knew which of them would prove important or threatening. But while one cannot exclude the possibility that such a situation will arise again on short notice, the war on terror has long since reached a steady state that cries out for more stable, long-term rules. The military and cia have detained fighters who span the entire range of possible enemies, from Taliban foot soldiers who were just trying to get by under an especially fanatical regime to members of al Qaeda’s senior leadership individually responsible for planning the September 11 attacks. The inmate population at Guantanamo has fallen substantially in recent years; few new detainees are arriving, and the administration has repatriated or freed large numbers of lower-level detainees. The time has long been ripe to institutionalize the detention regime at the base. The question these days is not how much flexibility the administration requires in an exigent circumstance but what rules should govern as the regime becomes a permanent institutional feature of American power.

Both on grounds of basic fairness and for pragmatic reasons, it’s hard to justify tribunals with rules quite as stacked against the detainees as the csrts are now — particularly the rules denying detainees the assistance of counsel and preventing them from confronting the evidence against them. (Detainees receive assistance from a nonlegal military officer and get an unclassified summary of the allegations against them.) Why should not the detainee have the benefit of the best arguments that can be mustered on his behalf? Why should not the tribunal have the benefit of a professional attack on the government’s presentation before, on the basis of that presentation, declaring someone detainable at the military’s discretion? Allowing counsel to represent detainees would greatly improve the quality of the tribunals’ decision-making. It would also permit a solution to the thorny problem of how detainees can confront evidence that may be highly classified and, therefore, quite unthinkable for the government to turn over to them. Counsel, after all, can be cleared to see classified information and can attack it, even if they cannot share it with their clients. The current procedures’ presumption in favor of the government’s evidence also ought to yield, and the burden of proof placed on those who would lock a man up as an enemy to demonstrate that he is one. csrt procedures certainly need not approach the norms of fairness required in criminal trials in federal court or even in military commissions. But Congress should make the rules adequate to allow a person to make his case for innocence, test the government’s evidence, and give a reviewing body some measure of confidence as to the finding.

Nor does it make sense for the detention that follows a csrt judgment to take place in perpetuity with no further judicial review. I don’t purport to know exactly how further review should be structured; that strikes me as a complex and delicate balancing act. But the current system — in which the arbs review each detainee’s case only annually and make judgments that have no appeal outside of the military hierarchy — seems the wrong balance. A better one, in my view, would permit some deferential review by the courts of such decisions to check against the abuse of what is necessarily broad executive discretion. Detentions structured in this fashion — with fair rules passed by Congress and modest judicial review both at the outset and over the duration of an incarceration — would give the executive branch the buy-in of the other two branches. Whatever inconvenience they might cause in any individual case, such rules would dramatically strengthen the executive’s posture in the conflict over the long term.

This vision of judicial review will not only fail to satisfy advocates of executive power. It will strike the traditional human rights advocates as unduly cramped. Indeed, to them, any vision will seem unjust to the extent that it accepts the soundness of the basic structure for judicial oversight the administration and Congress have already put in place: administrative judgments appealed directly to the federal courts, rather than subject to challenge in endless habeas corpus litigation.

Yet direct review seems to me a far simpler and more efficient means of ensuring compliance with procedural rules than does a habeas regime without a clear set of standards to enforce. To be sure, the judiciary will ultimately have to pass not just on compliance with specified procedures in each case but on the legality of the procedures themselves to the extent the Constitution imposes any due process requirements on trials of aliens abroad — a matter that itself will require further Supreme Court litigation to resolve. But there exists no reason these questions cannot be litigated effectively on direct review, following a judgment by a csrt or a military commission. What detainees would lose in this arrangement is the ability to attack detention and trial procedures prospectively — and, perhaps more important, to get discovery along the way. I cannot see this as a big loss, though it may weaken the hand of their lawyers. There is nothing terribly remarkable about the idea of limiting appeals in the absence of actual administrative actions to review. And in a system with more generous rules, these administrative findings would arrive at the courts with fully-developed records, obviating much of the need for the discovery that habeas actions now permit.

My point here is not necessarily that habeas in these cases should be abolished absolutely, as the dta and mca seek to do. It is, rather, that if Congress were to create appropriate procedures for administrative and judicial review of detentions, habeas would become largely superfluous even were it retained in some form. If, for example, habeas review remained available after a detainee had exhausted administrative and direct-review procedures, it would follow repeated determinations of the legality of the detentions in question by procedures legislated specifically to evaluate the integrity of those detentions. Depending on how Congress structured the regime, this could be needlessly duplicative or — as habeas is in the criminal system — a useful backstop check for egregious systemic failures. What makes no sense, however, is for habeas review to take place before any of these other procedures are even put to use. If it has a place in this area of law at all, habeas’s role is at the back end of these cases, not as the front line of defense.

The broad point is that judicial review cannot exist in a vacuum. In the common parlance, judicial review often sounds like oversight by a council of elders. But for the institution to serve a useful function, the term “review” requires some flesh — that is, judicial review has to mean the review by judges of something and pursuant to some known or recognizable law. In the current habeas cases, all of this grows pretty fuzzy. For what exactly is under challenge? The ability of the military to detain the enemy? The ability of the military to detain the enemy as unlawful enemy combatants? The ability of the military to detain the enemy without pressing charges? For all the pious talk of the “rule of law,” there is no clear law here. It only makes sense to decide what function judges should play in this process in the context of more basic decisions about what the process should look like. Put another way, one needs law if judicial review is to be anything more refined than simple judicial power.

All of which brings us back, at long last, to Rudolf Höss, Khalid Sheik Mohammed, and the problem of brutal interrogation tactics. What role, if any, should judges have here? The analysis above suggests that judges have no inherent role in policing this sort of thing. The fact of having been abused by American forces overseas does not alone create jurisdiction for the federal courts. The old maxim that no right can exist without a remedy is, in this context, disquietingly incorrect. In international conflict, lots of rights — and lots of wrongs — exist without remedy, and not every remedy in any event ought to be a judicial remedy. In the absence of clear statutory authorization for judges to examine overseas conduct directed against aliens, judicial review even over egregiously ugly and legally dubious conduct generally ought not to take place.

Yet this is not to say there is no place at all for judicial review of interrogation tactics. There is, indeed, a very important place. For at certain key junctures, those very statutory rules which, I have argued above, we so desperately need will strongly tend to bring the mode of interrogations under a judicial microscope. The new statutorily-authorized military commissions, for example, already forbid admission of statements obtained by torture and greatly limit the admission of statements admitted by coercion short of it, which means that there will be litigation — ultimately in the federal courts — over how certain statements were obtained.¹² Were Congress to create similar rules for the csrts, parallel litigation would take place in appeals from those judgments as well. Even if these new rules permitted no more than counsel for the detainees, any lawyer worth his salt would be sure to challenge evidence against — and the use of statements by — his client extracted by means coercive enough to cast doubt on its reliability. In other words, though a detainee need not have access to the courts by mere dint of alleging abuse, judicial review would still creep in as a necessary incident to review of trials and detentions.

Such a system will, to be sure, leave significant gaps. For example, a beating that didn’t lead to any useful statements or which led to intelligence American forces used for operational, not evidentiary, purposes would not necessarily come before the courts, however lawless it may have been. But the judiciary does not appear quite as institutionally capable of covering those gaps as many people assume. For all the intuitive connections people draw between judicial review and the rule of law, it has not been the judiciary but the legislature that has been principally responsible for reining in executive interrogation tactics so far. It was the McCain Amendment in 2005, not any litigation, that first imposed substantive restraints on the government’s behavior, after all. And the judiciary’s efforts to go further have not proven durable; the holding in Hamdan applying Common Article 3  of the Geneva Conventions to the conflict, a holding which imposed constraints considerably beyond those the legislature had required, lasted only a few months before Congress pulled back. The arrangement that emerged in its place requires a measure of accountability to Congress for aggressive interrogation techniques and in practice likely means that interrogations will take place using only tactics with which a critical mass of key senators expresses comfort. It isn’t principled but it aptly reflects the unprincipled reality that politics and shame provide a more calibrated and effective leverage here than does pure law for the policing of these gaps.

Moreover, as I’ve intimated above, I don’t believe these gaps are an altogether bad thing. Without them, we would have to decide as a society absolutely whether we really want to prohibit highly coercive interrogation in all circumstances, since the government would become accountable to the courts for every incident of it. The answer to this question, if we are entirely honest, is that of course we don’t — but that we just as surely don’t want to say that, much less write it into our laws. These gaps offer a measure of permission for a kind of constructive hypocrisy that allows us more restrictive rules than we could probably otherwise afford. The gaps let us ban torture and conduct just shy of it, and when we need to practice it anyway, protect those we ask to do the dirty work from branding as war criminals. That hypocrisy, so deplored by human rights groups, seems to me valuable. It’s a messy marriage of the twin facts that, on the one hand, no society can survive in the long run while shrinking from the steps necessary to secure its survival and, on the other hand, that some of these steps are ones of which no democracy can be proud.

¹ Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

² Public opinion data are, to be sure, complicated. In Gallup polling, for example, a majority of Americans opposes torture and certain interrogation techniques that fall just short it and believes interrogations should follow the Geneva Conventions. A plurality also opposes terrorist trials in which the defendant does not get to confront all of the evidence against him. At the same time, however, the percentage saying the administration has “gone too far” in restricting liberty in the name of counter-terrorism more generally has never exceeded 41 percent; from a high of 85 percent in June of 2002, the percentage saying the administration’s approach has been “about right” or “not gone far enough” has fallen sharply — though as of May 2006, it still stood at 53 percent. These data can be found at http://www.galluppoll.com/content/default.aspx?ci=5263 (subscription required).

³ The circumstances of Höss’s capture are described in Laurence Rees, Auschwitz: A New History (Public Affairs, 2005), 288–289.

⁴ Under Supreme Court doctrine, investigative tactics that “shock the conscience” are considered to violate substantive due process requirements of the Fifth Amendment. See Rochin v. California, 342 U.S. 165 (1952).

⁵ Rasul v. Bush, 542 U.S. 466 (2004).

⁶ Boumediene v. Bush, 476 F.3d 981 (D.C. Circuit 2007).

⁷ Boumediene v. Bush, 127 S. Ct. 1478 (2007).

⁸ Johnson v. Eisentrager, 339 U.S. 763 (1950).

⁹ President Bush called detainees “bad people” at a news conference on July 17, 2003. White House spokesman Ari Fleischer called the detainees the “worst of the worst” in a press briefing on January 23, 2002. On January 27, 2002, cnn broadcast Defense Secretary Donald Rumsfeld calling them, “among the most dangerous, best-trained, vicious killers on the face of the earth.”

¹⁰ See P.L. 109-148, Section 1005(e).

¹¹ For some troubling examples, see Tim Golden, “For Guantanamo Review Boards, Limits Abound,” New York Times (December 31, 2006).

¹² See Section 3 of P.L. 109–366, specifically, the new section 948r added to Title 10 of the U.S. Code.