After Boumediene

The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court” – as if Congress, the law writing branch of our government, had nothing to say about them. Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases – i.e., to seek their release from custody – in the federal district courts. The combatants have not been ordered released, and the narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases. That is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave judges free to make it up as they go along. How much less should we do so with respect to combatant detention – a war power as to which judges have no institutional competence? […] Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit – with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational – the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).