Muscular Procedure: Conditional Deference in the Executive Detention Cases

• Publication year: 2021

MUSCULAR PROCEDURE: CONDITIONAL DEFERENCE IN THE EXECUTIVE DETENTION CASES

Joseph Landau(fn*)

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 decision-making, while still allowing the political branches to define the 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................................................................................662

I. CRITICISM OF THE 9/11 DECISIONS AS MERE

PROCEDURE..............................................................................668

A.The Supreme Court's Decisions from Rasul to Boumediene........................................................................668

B.Scholarly Criticism of the Court's Procedural Decisions... 671

C.The Effect of Procedural Decisions on Detainee Releases..............................................................................673

II. FROM MERE PROCEDURE TO MUSCULAR PROCEDURE..............................................................................675

A.How Procedural Rules Bring Cases to Resolution.............676

1.Courts Have Accelerated Final Resolutions by Issuing Broad Discovery Orders................................... 676

2.Courts Have Resolved the Merits by Applying Baseline Evidentiary Requirements..............................680

3.Courts Have Used Procedural Rules to Protect Detainees from Torture Overseas ................................. 683

4.Courts Have Endorsed Litigants' Efforts to Invoke Supplemental Procedural Devices................................686

B.How Procedural Rules Check Insufficient Coordinate Branch Decision-Making...................................................688

1.Curbing Executive Branch Overreach..........................689

2.Managing Intra-Branch Deliberation............................693

3.Responding to Congressional Abdication....................696

III.PULING MUSCULAR PROCEDURE IN CONTEXT............698

A.Muscular Procedure and Civil Libertarianism ................... 698

B.Muscular Procedure and Bilateral Endorsement ................ 704

IV.MUSCULAR PROCEDURE'S DOCTRINAL IMPACT...........706

A.Muscular Procedure's Normative Basis.............................706

B.Identifying Muscular Procedure Beyond National Security-The Immigration Context..................................709

C.Muscular Procedure's Effect in Future Cases....................712

CONCLUSION....................................................................................714

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.(fn1) Others believe that courts should decide as little as possible, asking only whether executive action is grounded within statutory authority.(fn2) 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.(fn3)

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.(fn4) 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 definition(fn5)-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 Guantanamo Bay years after being cleared of any wrongdoing.(fn6) More broadly, procedural devices have been used to smoke out and put in check Congress's lack of oversight of the executive branch and its misguided interpretations and implementation of authorizing legislation.(fn7)

In a number of these cases, courts have resolved the merits of an enemy combatant(fn8) challenge by scrutinizing the Executive's adherence to baseline procedural safeguards-rejecting determinations based on absolute secrecy, innuendo, tentativeness, or multiple levels of hearsay, while affirming executive branch decisions satisfying minimal standards of reliability.(fn9) In the process, the judiciary has rebuffed the President's extreme interpretations of vague authorizing legislation,(fn10) reexamined inadequately reasoned decisions by various arms of the executive branch in implementing a congressional delegation,(fn11) and stimulated legislative action where Congress has failed to oversee executive decision-making through the legislative process.(fn12) Throughout these decisions, procedure functions as a corrective to decision-making by one (or both) of the political branches that, if left undisturbed, would violate a judicially imposed standard requiring lucid, intelligible procedures.

Sometimes judicial review is overtly exacting in these cases, with courts imposing burdensome procedural obligations on a party to litigation (usually the government).(fn13) Other times the review is relatively light-as in the imposition of a relaxed standard of review when ruling on an enemy combatant designation-but heavy enough to invalidate executive branch decisions lacking sufficient indicia of reliability.(fn14) Still other times the review is moderately demanding, requiring a co-equal branch to reconsider its interpretation of a statute (in the case of the Executive)(fn15) or to reaffirm its position through clear and more purposeful language (in the case of the legislature).(fn16) These varying procedural demands are generally consistent with the deference norms that obtain under prevailing doctrine,(fn17) but they impose enhanced procedural conditions that require the political branches to satisfy a judicially imposed level of transparency and deliberation-conditions that make procedural review far more muscular than might otherwise be expected.

Muscular procedure highlights a process-oriented approach(fn18) to legal decision-making in national security through a judicial insistence on procedural regularity, a matter over which the judiciary has a comparative advantage in expertise.(fn19) The theory presents an alternative to much of the conventional wisdom within the relevant literature. Although the prevailing 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 put procedure to muscular uses by focusing on the means of coordinate branch decision-making, while still allowing the political branches to define the...