Habeas, Informational Asymmetries, and the War on Terror

Although most American lawyers and legal scholars are primarily familiar with habeas corpus in the context of federal review of state convictions, habeas petitions have been used to challenge detention by the executive branch in a variety of non-criminal contexts, such as immigration or national security. In this Article, we offer a two-part justification of a robust habeas procedure in non-criminal contexts. First, building upon insights drawn from contract theory, we argue that habeas corpus review has an information-forcing function. In our account, one of the crucial benefits of habeas review in non-criminal contexts is that it is often the only means by which the executive branch can be induced to disclose information it may possess regarding the detention, and to publicly justify the detention. This important function is frequently overlooked in the context of post-conviction review of criminal sentences, because an adequate trial procedure will have revealed the asserted factual and legal basis of the petitioner's detention. Where there has been no trial, however, habeas corpus may be the only way that the petitioner, and the pubic at large, will learn of the asserted basis for detention. Second, we argue that, beyond the obvious benefits for the petitioner, the availability of a procedure to enforce disclosure serves important political process values as well. Decisions about individual detentions are vested in the discretion of executive branch officers, and broader policy decisions undergirding detention are committed to the legislative and executive branches. The possibility that one or both political branches will engage in or endorse arbitrary or unlawful detentions is primarily constrained by the operation of the political process — to the extent that political leaders subject persons to detention in a manner that is contrary to the values of preferences of a majority of the nation's citizens, the voters may hold those leaders accountable. However, this process cannot operate without disclosure to the public about the facts and asserted justification for the detention

The Hidden Costs of Habeas Delay

Because habeas petitioners seek a court order for liberty rather than compensation, judges have a duty to decide habeas petitions promptly. But increasingly, the federal courts have fallen behind on their heavy habeas dockets, and many petitions — some of which are meritorious — remain undecided for years. First, this Article makes the normative and historical argument that speed must be, and always has been, central to the function of habeas. Second, it analyzes newly compiled Administrative Office of the United States Courts data on more than 200,000 habeas petitions and demonstrates empirically for the first time that there is a widespread and growing problem of delay in the resolution of habeas petitions in the federal courts. Third, this Article offers a specific and concrete remedy for the habeas delay problem, recommending that the Judicial Conference of the United States require judges to identify publicly all habeas petitions that have been pending in their chambers for more than six months, just as the Civil Justice Reform Act requires them to do for all other civil motions

An Empirical Critique of JCAR and the Legislative Veto in Illinois

This Article collects and analyzes nearly four decades’ worth of data concerning the legislative oversight of administrative agency rulemaking in Illinois. Its chief purpose is to assess the efficacy of the state’s legislative veto scheme. In particular, the Article focuses on the Joint Committee on Administrative Rules (“JCAR”), a bipartisan legislative committee that is authorized to review rules produced by administrative agencies in the executive branch. Since late 2004, JCAR has possessed veto power over agency rulemaking, meaning the committee may permanently stop implementation of new rules upon the vote of three-fifths of its twelve members. For even longer, the Illinois General Assembly has been authorized by statute to block agency rules through passage of joint resolutions, which do not require presentment to the Governor for a potential executive veto. In a companion piece, the author argued that the legislative veto scheme in Illinois is unconstitutional, primarily because it allows the General Assembly to engage in lawmaking without meeting the state constitutional requirements of bicameralism and/or presentment. This piece addresses the distinct question of whether legislative vetoes are an effective and desirable method for policing agency rulemaking. Such analysis is warranted, notwithstanding the alleged unconstitutionality of the extant legislative veto scheme, because the Illinois constitution could be amended to allow legislative vetoes, as has been done in other states. The Article offers several observations and conclusions. The data suggests that the threat of a legislative veto may drive agencies toward creating smaller and arguably more optimal volume of rules annually. But it also shows that in the years since JCAR was granted veto powers the number of rules that JCAR has prohibited and suspended has increased markedly, correlating with a further drop in rulemaking volume that raises questions about whether the state’s agencies are being over-policed. In addition, a qualitative assessment of JCAR’s veto activity since 2005 reveals that JCAR has in multiple ways deployed its veto authority in a manner beyond its statutory authority. The Article concludes that the General Assembly’s grant of legislative veto powers to JCAR, while well-intentioned and in some ways beneficial, has disrupted the balance of power among the governmental branches in the state, obscuring lines of political accountability and wresting too much institutional control of rulemaking power from the executive. The Article recommends that, if the Illinois Supreme Court eventually rules the legislative veto unconstitutional, the people of Illinois reject efforts to reinstate the veto through constitutional amendment

Guantánamo in the Supreme Court: Welcome Back, Welcome Back, Welcome Back

Boumediene v. Bush is the latest of the Guantánamo detainee cases to make it to our nation’s highest court, and it will be the third time that the Justices take a metaphorical tour of Guantánamo in order to sort out some fundamental issues concerning our country’s dedication to the rule of law in the age of terror. What’s the issue in Boumediene? In simplest terms, the case is a challenge to the constitutionality of the Military Commissions Act, a statute in which Congress stripped the federal courts of the power to hear habeas corpus petitions that were filed years ago by prisoners at Guantánamo. None of these petitioners have been convicted of anything, and none have even been charged with a crime. In fact, the Pentagon has made it clear that most of these men never will be charged with anything

Toward a Limited-Government Theory of Extraterritorial Detention

The United States military's detention of hundreds of men at the Naval Base at Guantanamo Bay since January 2002 has drawn intense international condemnation, focused mainly on the United States' refusal to afford the detainees minimal due process protections. The Insular Cases, Eisentrager, and Reid all played a role when the Court next considered whether constitutional protections extended to non-citizens outside of U.S. territory. In Downes, Justice White described the core constitutional protections afforded to residents of unincorporated territories as "absences" of government power, not as "fundamental rights. ... We believe that whether or not non-citizens have a constitutional "right" to be free from torture or extrajudicial detention abroad by the U.S. government, the courts may recognize that the U.S. government does not have a "right" to act in this manner