Published by The Lawfare Institute
in Cooperation With
Published by New York University Press
Reviewed by Benjamin Wittes
Jonathan Hafetz’s new book on post-September 11 habeas corpus strikes an oddly dissonant chord. The keynote in Habeas Corpus After 9/11: Confronting America’s New Global Detention System is celebratory as to the writ’s role—the now-predictable exultation on the part of the American Left of the role that habeas has played in reining in detention excesses. At the same time, however, Hafetz is candid that habeas has been in the past and increasingly will be in the future inadequate as a means of checking the executive—and he thus urges its radical expansion to allow judges to supervise detentions beyond Guantanamo Bay, even beyond individuals held by U.S. forces abroad. Yet even as he argues for this expansion, Hafetz also argues uncompromisingly against non-criminal detention itself—that is, for the abolishment of those very practices that he would expand habeas to cover. His book is frustrating because he never quite squares the circle between the grandiose role he would have habeas play and the virtual null set of detentions he would allow. Put simply, he never quite answers the question of why habeas is really important if one is not going to have any detainees to file cases. Most of Hafetz’s book is a fairly conventional, and familiar, liberal critique of the Bush administration on detention matters. The first section, in the author’s summary, “examines the rise of the interconnected global detention system.” It “traces the origins of this system to a series of executive branch decisions and legal opinions that opened the door to arbitrary detention, sham military trials, and torture, all without court review.” It discusses Guantanamo as “a prison beyond the law, pervaded by illegal detention, abuse, and secrecy.” It looks at “other off-shore U.S. prisons, from the military detention centers in Afghanistan and Iraq to secret CIA jails or ‘black sites.’” And it tells the story, once again, of both the litigation to establish judicial control over Guantanamo and the story of the domestic enemy combatant cases—which Hafetz describes as the effort to “create a lawless enclave—a new Guantanamo—on American soil.” All of this is well-trodden territory. There’s not that much new to add on these subjects, and Hafetz does not, in my view anyway, add much that is new. In this review, therefore, I focus almost entirely on Hafetz’s final section, his four forward-looking chapters, which engage a project close to my own heart. As he summarizes in his introduction, this section,
Provides the broad outlines of a legal and sustainable detention policy. As its starting point, it takes the singular importance of habeas corpus as a constraint against the growth of prisons beyond the law. It also explains why habeas alone is insufficient, its potential constrained by a combination of practical limits on its availability and the government’s proclivity to seek new ways to detain and interrogate without judicial oversight.
The Supreme Court . . . should have made clear that habeas corpus is available to all individuals detained by the United States, regardless of where they are held, without a valid suspension of the writ by Congress. The sole prerequisite for habeas jurisdiction should be detention by, or at the direction of, the United States.
warrants broader habeas review. A court must do more than simply confirm that the government is complying with the Geneva Conventions. . . . In a non-international armed conflict, in which international law does not supply a basis for detention, a court must address who may properly be subject to detention without charge: that is, the category of persons—if any—subject to military confinement or administrative detention rather than prosecution in the regular criminal courts. A court must also determine whether the individual prisoner is himself detainable.
Although unprivileged belligerents may be targeted with military force when they are directly participating in hostilities, they remain civilians for purposes of detention and trial. This does not mean they are immune from punishment. To the contrary, unprivileged belligerents may be prosecuted for murder or related offenses under domestic law. The Bush administration thus deviated from long-standing rules and customary practice by seeking to treat those who allegedly were connected to or supported al Qaeda and associated organizations as combatants subject to indefinite military detention or military prosecution as war criminals rather than as civilians subject to criminal prosecution under domestic law.
So ironically, if Hafetz had his way, the only detainees who would get the benefits of the radically expanded habeas regime he contemplates are those who in his own account least need it: prisoners of war. Everyone else would be facing criminal charge in an American court. All of which raises a question Hafetz never quite answers: What’s the point? I can only think of a few ways to square the circle—and I’m honestly not sure which Hafetz intends as his message. The first possibility is that Hafetz imagines habeas as the mechanism by which we abolish non-criminal detention. There is some indication of that in his conclusion, where he notes that the “most significant resistance to extrajudicial detention, military commissions, and abusive interrogations came from the courts” and that “Only the courts, through the exercise of habeas corpus jurisdiction . . . imposed real limits on the government’s detention and treatment of terrorism suspects. The federal judiciary remained the one branch in which law and facts mattered, even if they did not matter enough. . . .” Despite its imperfections, he seems to be saying, habeas is the best tool we’ve got for “curtailing illegal executive action” and for addressing “the most basic question [the war on terror] raised: who is a civilian and who is a combatant, that is, who is properly subject to military detention and thus exempt from the ordinary requirement of criminal charge and trial under the Constitution.” The trouble for Hafetz if he is imagining habeas as a tool for abolishing detention is that it isn’t working out that way. The courts are right now busily addressing the question of who can be detained, and their answer so far doesn’t look anything like Hafetz’s idea that any terrorist must be tried as a criminal. Rather, the D.C. Circuit is upholding detentions based on relatively sparse fact patterns that, in its judgment, make it more likely than not that a given detainee is “part of” the enemy—and the Supreme Court has shown no appetite to intervene. Habeas right now is serving to legitimize, not to abolish, non-criminal detention. The second possibility is that Hafetz is being tactical here, that he knows he is losing on the big question and the point of his book is to outline a Plan B without quite forsaking his Plan A. In this reading, Hafetz is mouthing deeply held principles about abolishing non-criminal detention but is actually being savvy that nothing of the kind will happen and is therefore arguing for a worldwide habeas regime as a kind of fallback plan. If we can’t get rid of detention entirely, he may be saying, at least we can demand a more robust habeas regime to supervise it. The third possibility is that he is trying to do a bit of both—that is, proposing a robust habeas regime that he hopes, over time, will act as a mechanism to abolish non-criminal detention but will at the very least act to supervise detention policy in the interim. Whichever the answer is, it’s rather a flaw in a book explaining the importance of habeas after September 11 that it leaves the answer to such a basic question so opaque. My bottom line is that this book breaks little new ground. Its historical and normative arguments are familiar, and its prescriptions are so severed from the current and likely direction of both administration and judicial policy as to read more like an argument for posterity than like an effort to engage current realities. The truth is that even Hafetz’s fallback plan is well beyond what the courts are willing to entertain. That, in my judgment, is a good thing. But whether one cheers it or laments it, it makes arguments like Hafetz’s seem very academic—far from the pivot points of actual administrative or judicial decision-making.