Formulating a Reliable Detainee Policy

Will asked me to comment on this op-ed by Jack Goldsmith and Benjamin Wittes pleading with Congress and the President to formulate clear rules regarding detention policy in the War on Terror.

Although I suspect I would strongly disagree with Goldsmith and Wittes about what the proposed rules should look like, I think the substance of this op-ed is probably right on target. The courts ultimately are the arbiters of what is and is not constitutional, and have to remain that way, but they are absolutely not well-suited for affirmatively drafting rules and that sort of thing. Once the Supreme Court started (correctly, IMHO) ruling policies unconstitutional, it was the job of the legislature and, to a lesser extent, the executive, to formulate clear rules to replace the unconstitutional policies rather than leaving an undefined vacuum. Perhaps the replacement rules would have still been unconstitutional and perhaps the Supreme Court would have been forced to intervene again. But at least some of those replacement rules would have been constitutional and would have formed a basis for prosecutors, detainees, and attorneys to rely upon, and Congress could have again gone back to the drawing board to fill the new, smaller vacuum.

Now, however, you’ve got different cases pending before different judges in different courts with little to rely upon other than a handful of SCOTUS decisions that may or may not be relevant in a given case. Whatever results from that process, including whatever rules come out of Judge Hogan’s chambers, are going to be of very limited precedential value. At a minimum, you’re going to wind up with a whole mess of rules that will likely be contradictory, and at the very least uncoordinated, and provide absolutely nothing upon which potential litigants may rely. Until you’ve got something that has the weight of a formally enacted law or, at a minimum, properly enacted administrative regulations, you’re not going to have anything upon which litigants can look to. The conflicting rules will also mean that you will wind up with detainees getting freed while other detainees with essentially identical cases languish in prison, with the only difference being the court or judge before whom they brought their claim for relief. Not good.

It’s not as if Congress isn’t amenable to taking second, third, and fourth bites at the apple when their legislation is found unconstitutional, either. For instance, in the various iterations of the Communications Decency Act, and COPA and CIPA, they made numerous attempts to legislate access to porn on the internet despite findings in each case that the legislation was unconstitutional. Eventually, they got it right so it wasn’t necessary to go back to the drawing board anymore.