An Important New Article By Aziz Huq

By Benjamin Wittes
Tuesday, September 21, 2010, 11:14 AM

More than two years ago, in my book Law and the Long War: The Future of Justice in the Age of Terror, I wrote the following paragraph about the value of habeas review to innocent detainees:

Indeed, [my] critique points to one other reason for skepticism of habeas review as a promising strategy for protecting innocent people swept up in the war on terror: It hasn't quite worked that way. Since the first detainees came to Guantanamo in the wake of the American intervention in Afghanistan, habeas litigation has proceeded continuously up and down all levels of the federal court system. Taken together, these hundreds of cases have produced orders to release zero detainees. They have admittedly served the important function of forcing the administration to moderate its policies, to pursue diplomatic options for repatriating detainees, to put in place administrative structures that more rigorously assess the detainee population, and to go to Congress to get certain rules written in law. The political pressures and the new administrative structures  have, as we have seen, led to the release of hundreds of detainees. But it is important to identify what all of this litigation has not accomplished: For the person erroneously or unnecessarily detained at Guantanamo, access to the federal courts has not meant freedom. It has at most pushed the policy process toward the creation of review procedures that have meant freedom. If one's goal is ultimately a legal architecture that more clearly and reliably separates the combatant from the noncombatant, it is on the integrity of those procedures that one should focus.

Time has moved on, and the specific number cited in this paragraph--zero orders of release--is no longer true. Indeed, there have been a bunch of orders for release emanating from habeas cases, enough that one might get the casual impression that the larger logic of the arguments is wrong. I stand by it, however. I still think habeas is a clumsy mechanism that badly serves the interests of the innocent detainee.

Enter Aziz Huq, a professor at University of Chicago who has been involved in various detainee litigations. Huq has just written a truly fascinating law review article (these are words I do not normally find myself stringing together) on the question of habeas's real value. Entitled "What Good is Habeas?" and forthcoming in Constitutional Commentary, Huq's article examines empirically the effect of habeas on releases from Guantanamo. And though Huq and I approach the question with very different normative views and his article is laced throughout with verbiage I would never use, he comes to a conclusion remarkably similar to my own: "habeas jurisdiction [in the wake of Boumediene] has had at best a complex, largely indirect, effect on detention policy. In the end, the effect of habeas is far more ambiguous than either critics or supporters of Boumediene have recognized. Harsh criticism and extravagant praise of the Court should both be tempered in the teeth of persisting empirical uncertainty."

Huq's argument is worth reading beginning to end. His core conclusions, however, are the following:

One central finding stands out: While the data is in many respects ambiguous, it strongly suggests that the effect of
Boumediene on detention policy was not significant. It is striking that at the most, less than four percent of releases from the
Cuban base have followed a judicial order of release—and even in these case it is not wholly clear that release would not have
happened sooner or later. Moreover, the annualized number of releases drops after Boumediene. Even in those few cases in
which the habeas writ has been granted, nagging questions persist about the scope and effective force of the federal court’s
remedial authority. Courts to date (with a few exceptions) have been reluctant to direct outright release, and have instead issued delicately phrased pleas to “try harder” to the Executive . . . . From a distance, therefore, habeas seems far from an effective tool for checking executive authority. The ambitious claims made in the literature for and against Boumediene are thus misguided.
Further, there is no positive relationship between the doctrinal consequences of Boumediene and its progeny on the
one hand, and the “fundamental political” liberty celebrated by Justice Kennedy. The black-letter law of detention, and the
implementation of that law by the government, is no clearer, no more stable, and no more coherent than it was before
Boumediene. The latter case cast some doubt on the guiding force of Hamdi, while the D.C. Circuit’s Al-Bihani decision blew
past Hamdi in its haste to embrace legislative language from 2006 and 2009. The Al-Bihani Court’s methodology invites post
hoc gerrymandering of detention policy by Congress. The net result is bleak on either one of Boumediene’s metric[s]: Habeas is not central to the protection of physical liberty, at least in the experience of the Guantánamo detainees. And “fundamental
political” liberty, to the extent that it is deepened by judicial confirmation of clear bounds to executive authority, has been disserved, if not wholly displaced, by the combination of Boumediene’s fecklessness and Al-Bihani’s invitation to
mischief. Federal courts, it seems, are too hesitant and circumspect in their approach to executive detention decisions to
vindicate “fundamental political” liberty via the elaboration of black-letter rules. The data, on this reading, should be little
comfort for those who claim to value the separation of power. Neither part of Boumediene’s justifying logic, in other words, has yielded much by way of practical result. Its consequences are on the one hand doctrinal ambiguity and on the other practically uncertain.
But this is not to say that the federal courts’ exercise of habeas jurisdiction has had no effect upon the executive policy
space. To observe an absence of large, direct effects from habeas is not to rule out the possibility of smaller, indirect effects.
Habeas, that is, may serve liberty indirectly. Although the larger claims on behalf of habeas might be unwarranted, it is certainly possible, and even probable, that habeas has a meaningful incentive effect that can be traced in the data. To identify such an indirect effect entails situating the writ in a larger institutional context of the courts’ interactions with other branches of government. The data presented here does not allow a detailed investigation of such indirect connections. But it is suggestive.
I recommend this article very highly to people across the political spectrum. Irrespective of one's normative view of habeas, it offers an important window into an understudied question: How valuable is it really as a mechanism for freeing the innocent? Policy differences aside, Huq's empirical answer seems to me profoundly correct.