[opiniojuris] Steve Vladeck: A First Take On *Boumediene*: Habeas Corpus and Error Correction

[Email subscription to blog articles]

Posted by Steve Vladeck:
A First Take On *Boumediene*: Habeas Corpus and Error Correction
http://www.opiniojuris.org/posts/1213291121.shtml


   First, my thanks again to Roger, Peggy, and the rest of the OJ crew
   for the opportunity to share some preliminary thoughts on Boumediene.
   Obviously, thereâs already a lot out there, with much more yet to
   come. Rather than tackle the big and obvious headline stuff, or try to
   respond to other points already made, I want to focus on what, for me,
   was the most fascinating part of Justice Kennedyâs majority
   opinionâhis excursus on the purpose of the writ of habeas corpus.
   Consider the following passage, found at pages 55â57 of the slip copy:

     Even if we were to assume that the CSRTs satisfy due process
     standards, it would not end our inquiry. Habeas corpus is a
     collateral process that exists, in Justice Holmesâ words, to âcu[t]
     through all forms and g[o] to the very tissue of the structure. It
     comes in from the outside, not in subordination to the proceedings,
     and although every form may have been preserved opens the inquiry
     whether they have been more than an empty shell.â Even when the
     procedures authorizing detention are structurally sound, the
     Suspension Clause remains applicable and the writ relevant. . . .
     Although we make no judgment as to whether the CSRTs, as currently
     constituted, satisfy due process standards, we agree with
     petitioners that, even when all the parties involved in this
     process act with diligence and in good faith, there is considerable
     risk of error in the tribunalâs findings of fact. This is a risk
     inherent in any process that, in the words of the former Chief
     Judge of the Court of Appeals, is âclosed and accusatorial.â And
     given that the consequence of error may be detention of persons for
     the duration of hostilities that may last a generation or more,
     this is a risk too significant to ignore. [alterations in original]

   In other words, the constitutional sufficiency of the CSRT procedures
   is only one small piece of the puzzle. The fact that there is a
   substantial likelihood of incorrect results, and that such results
   would cause immeasurable harm, is itself a reason to conclude that the
   DTA review process is an inadequate substitute for habeas. This may
   seem like doublespeak, because how can the process be truly
   constitutionally âadequateâ if there is such a high probability of
   inaccuracy. Chief Justice Roberts certainly seems to think this is
   nuts in his dissent. But I think Kennedy is saying something else
   hereâthat accuracy is the desired end, and procedural sufficiency is
   but a means thereto.
   If so, then such analysis would constitute a potentially sweeping
   retreat from one of the hallmarks of the Rehnquist Courtâs habeas
   corpus jurisprudence (and the scholarship of the legendary Paul
   Bator): the idea that habeas corpus is not about error correction;
   that the âGreat Writâ is meant to ensure fair proceedings, but not
   necessarily accurate proceedings. (For one troubling example of such a
   case, see [1]Herrera v. Collins).
   Kennedy is careful, of course, to note that this discussion is limited
   to the context of habeas petitions challenging detention by executive
   order, and not other forms of habeas review where there is less reason
   for skepticism. As he says on pg. 57, âConsistent with the historic
   function and province of the writ, habeas corpus review may be more
   circumscribed if the underlying detention proceedings are more
   thorough than they were here.â But I wonder if thatâs not closing the
   barn door after the furry little things have already left, for it begs
   the question whether the âunderlying detention proceedingsâ are
   âthorough,â and it suggests that habeas review is far broader whenever
   there are reasons to think that such proceedings are not.
   The idea that habeas actually should be about error correction (or, at
   least, should also be about error correction) when there are reasons
   not to trust the underlying detention proceeding is reminiscent of the
   heyday of the Warren Courtâs habeas jurisprudence. Iâm just surprised
   to see it re-emerge here, and so prominently, at that...
   I hope to have some more later on the relationship between Boumediene
   and the equally significant decision today in Munaf, but thought I'd
   pause here, for now.

References

   1. http://www.law.cornell.edu/supct/html/91-7328.ZO.html