The Inadequate Substitute

December 4, 2007

*Cross-posted from Balkinization

Wednesday’s Supreme Court argument in the Guantanamo
detainee cases (Boumediene v. Bush and Al Odah v. United States)
will presumably focus on the alternative review scheme Congress and the
administration created in place of habeas corpus. Assuming the Guantanamo
detainees are protected by the Constitution’s Suspension Clause (as I have
argued they are), the question will then be whether review by the D.C. Circuit
under the Detainee Treatment Act (DTA) of Combatant Status Review Tribunal
(CSRT) findings is an “adequate and effective” substitute for habeas. It is
difficult to take seriously the notion that the DTA-CSRT scheme is an
“adequate” or “effective” substitute for anything, let alone for the
centuries-old writ praised by Blackstone and Hamilton as the “bulwark” of
individual liberty.

List the factors that make a hearing unfair and put them all
together: that’s the CSRT on a good day. In brief, the CSRT relies
predominantly on evidence a detainee cannot see; affirmatively prohibits the
assistance of counsel; freely admits statements gained by torture and other
coercion; and routinely refuses detainees’ requests to call witnesses or
present exculpatory evidence. In addition, the CSRT’s panels of mid-level
officers lack any structural guarantees of independence. All of the detainees
had already been designated “enemy combatants” by the tribunal’s superiors, all
the way up to the Secretary of Defense and the President. The CSRT disagreed
with those determinations only on rare occasions (about 5 percent of the time).
And, on several of those occasions, the tribunal’s superiors ordered “do-overs”
until the tribunal reached the desired result.

DTA makes it impossible to remedy the CSRT’s flaws. It limits judicial review
to whether the CSRT followed its own rules and whether those rules satisfy the
Constitution and laws of the United States
(to the extent applicable). Exactly what DTA review means is the subject of
separate litigation in the D.C. Circuit (Bismullah v. Gates). But one
thing is certain: DTA review is confined to the CSRT record, and cannot supply
the independent judicial fact-finding that habeas can. For that reason, the
DTA-CSRT process will ultimately remain one of garbage in, garbage out.

one sense, comparing this scheme with habeas corpus is unfair. The DTA-CSRT was
never meant to provide an adequate or effective substitute for habeas.
This fact alone should make a constitutional difference. When the Supreme Court
previously suggested that the Suspension Clause might be satisfied by an
“adequate and effective” substitute for habeas, it was considering the constitutionality
of alternative review measures that Congress intended to be commensurate
with habeas: post-conviction review for federal prisoners under 28 U.S.C. §
2255 in United States v. Hayman and under the D.C. Code (for D.C.
prisoners) in Swain v. Pressley. Congress, however, intended DTA review
of CSRT findings to be much more circumscribed than habeas, not commensurate
with it. Unlike in Hayman and Swain, Congress did not intend to
replicate habeas in another forum with the DTA. Rather, Congress set out to
create an inferior process for a class of individuals it believed had no right
to habeas corpus (or to anything else for that matter). Trying to make the
DTA-CSRT into a substitute for habeas is like trying to fit a square peg in a
round hole.

government seeks to divert attention from the DTA-CSRT’s failings by invoking
the idea of agency review. The DTA, the government reassures, merely adopts the
familiar model of the modern administrative state: limited appellate review of
agency fact-finding. But even assuming this model could pass constitutional
muster for cases of indefinite executive detention, the underlying process
would have to be full and fair – everything the CSRT is not. And, any
suggestion that errors can be corrected on DTA review from a one-sided and
non-adversarial CSRT process is a fantasy. Whether an agency model might
suffice in another time and another place, it cannot replace habeas for these
detainees, who have languished at Guantanamo
for six years without a fair hearing, be it military, administrative, or

a 2005 speech
to the NSA, former Deputy Attorney General James Comey called for a commitment
to “Intelligence Under the Law.” Comey explained why the United States
must adhere to its legal obligations when gathering intelligence. Guantanamo
presents another side of the problem: what to do when the United States
has imprisoned people (without charge) based upon intelligence gained outside the
law – in many cases through torture and other coercion.

his insider
of the CSRT process, Lieutenant Colonel Stephen Abraham, a
26-year-veteran of military intelligence, demolishes any pretence that the CSRT
could ever be part of a system of intelligence under law. The tribunals made
decisions, Abraham says, based upon a haphazard
collection of generic information that rarely related to the detainee in
question and that “lacked even the most fundamental earmarks of objectively
credible evidence.” In a subsequent
, Abraham explains how the CSRT had no ability, incentive, or
means to assess the reliability or accuracy of the intelligence on which it was
relying in the jerry-rigged process that has come to define the detention
system at Guantanamo.

If the United States is to move towards
the goal of “Intelligence Under the Law” (as it must do if it is ever to
develop a rights-respecting national security policy), it needs to do more than
gather intelligence lawfully. It must make certain that no individual is
deprived of his liberty without a meaningful fact-finding process to test and
to probe that intelligence so that mistakes are exposed and corrected. Both
judges and lawyers must play an active role in that fact-finding process, the
very role habeas corpus promises and that the DTA-CSRT precludes.

Hafetz: "Inadequate Substitute" (PDF)