Academic journal article Washington Law Review

Muscular Procedure: Conditional Deference in the Executive Detention Cases

Academic journal article Washington Law Review

Muscular Procedure: Conditional Deference in the Executive Detention Cases

Article excerpt

Abstract: The executive detention cases of the past several years demonstrate a rare but critical assertion of procedural law where the political branches fail to legislate or to properly implement substantive law. This is "muscular procedure" - the invocation of a procedural device to condition deference on political branch integrity. Courts have affected the law of national security in profound ways by requiring the political branches to adhere to a judicially imposed standard of transparency and deliberation. Courts have resolved the merits of individual enemy combatant challenges by rejecting executive branch decisions based on absolute secrecy, innuendo, tentativeness, or multiple levels of hearsay, while affirming executive determinations that satisfy minimal standards of reliability. More broadly, courts have used procedural rules to smoke out and put in check Congress's lack of oversight of the executive branch and the President's inadequate interpretation and implementation of authorizing legislation. Although the prevailing descriptive and normative frameworks advocate either blind deference to the collective expertise of the political branches or judicial resolution of large, complex and highly fractious substantive questions, courts have instead put procedure to muscular uses - focusing on the means of coordinate branch decisionmaking, while still allowing the political branches to define me content of the substantive law. This theory of judicial review, which is grounded in the judiciary's comparatively greater expertise in procedure, has implications beyond the national security context.

INTRODUCTION

The executive detention cases of the past several years have prompted renewed debate over the proper scope of judicial deference to the executive branch's claimed need to limit individual liberties during times of crisis. Some theorists argue that courts should resolve large policy questions raised by individual challenges to assertions of executive power.1 Others believe that courts should decide as little as possible, asking only whether executive action is grounded within statutory authority.2 However, a number of the post-9/11 national security decisions have accomplished a great deal without following either approach. In these cases, the Supreme Court and a number of lower courts have put procedural devices to surprisingly "muscular" uses. The decisions illustrate a rare but critical assertion of procedural law where the political branches fail to legislate or properly implement substantive law. This is "muscular procedure" - the invocation of a procedural rule to condition deference on coordinate branch integrity. The cases provide a framework for understanding the role of judicial review in the post-9/11 executive detention decisions, with implications for other fields of law as well.3

Many commentators have criticized the Supreme Court's executive detention decisions as "merely" procedural rulings, pointing out that the Court has generally addressed itself to questions about adjective law or the ground rules of litigation: whether the Court has jurisdiction; whether detainees can access the courts; and whether the government is required to provide discovery, and if so, how much.4 Far fewer decisions have resolved substantive questions such as the scope of executive power and the content of individual liberty - that is, whom the Executive can hold and for how long, and the specific constitutional protections that apply. But regardless of whether a particular decision turns on "process" or "substance" - an age-old distinction that resists clear definition5 - courts have affected the law of national security in profound ways by explicitly requiring the political branches to adhere to a judicially imposed standard of transparency and deliberation. In individual cases, rulings about seemingly mundane procedural issues such as discovery and evidentiary standards have accelerated the release of enemy combatant detainees who were held at Guantánamo Bay years after being cleared of any wrongdoing. …

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