The differences between habeas corpus and due process are important. The Due Process Clause, among other things, regulates the procedures that the government must use before it detains a person and holds the person in custody. But the Suspension Clause safeguards a more elemental habeas privilege. That is, under the Suspension Clause, the judge examines the bare question of whether a person is being held in custody legally. In Habeas Corpus and Due Process, I focus on the independent role of the habeas process. The deep confusion between habeas corpus and due process arises from a critical area of overlap: the habeas judge may examine not only the bare lawfulness of the custody, but also whether officials complied with required procedures to detain the person, including due process requirements

Garrett, Brandon L.

English

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HABEAS CORPUS STANDING ALONE: A REPLY TOLEE B. KOVARSKY AND STEPHEN I. VLADECKBrandon L. Garrett4I. HABEAS CORPUS STANDING ALONE......... .................... 36II. AN APPLICATION To EXTRADITION .......................... 38III. WHEN IS REVIEW COLLATERAL? ........................ 39IV. FACTUAL REVIEW .................................... ....... 40V. THE SHADOW OF THE SUSPENSION CLAUSE ................... 41The differences between habeas corpus and due process areimportant. The Due Process Clause, among other things, regulatesthe procedures that the government must use before it detains aperson and holds the person in custody. But the Suspension Clausesafeguards a more elemental habeas privilege. That is, under theSuspension Clause, the judge examines the bare question of whethera person is being held in custody legally. In Habeas Corpus and DueProcess, I focus on the independent role of the habeas process.' Thedeep confusion between habeas corpus and due process arises from acritical area of overlap: the habeas judge may examine not only thebare lawfulness of the custody, but also whether officials compliedwith required procedures to detain the person, including due processrequirements.I am so grateful to Professors Lee B. Kovarsky and Stephen I.Vladeck for their insightful comments and responses to my Article.' Ihave long benefitted from Professor Vladeck's work, as is apparentthroughout my Article. 3 Professor Kovarsky and I share an even moredirect interest in getting the distinctions between habeas process andother forms of process right: we are just now completing a federalhabeas corpus casebook that we have co-authored.4 While responsesf Roy L. and Rosamund Woodruff Morgan Professor of Law, University of VirginiaSchool of Law.I See Brandon L. Garrett, Habeas Corpus and Due Process, 98 CORNELL L. REV. 47(2012).2 See Lee B. Kovarsky, Response, 98 CORNELL L. REv. ONLINE 1 (2013); Stephen I.Viadeck, Response, 98 CORNELL L. REV. ONLINE 20 (2013).3 I should also note here my great interest in Steve Vladeck's work on extraditionand habeas corpus. Professor Vladeck notes that he co-authored an amicus brief onbehalf of legal historians and habeas corpus experts and in support of certiorari inTrinidad y Garcia v. Thomas. Vladeck, supra note 2, at I n.t. For the brief itself, see Briefof Legal Historians and Habeas Corpus Experts as Amici Curiae in Support of Petitioner,Trinidad y Garcia v. Thomas, 2013 WL 57582 (2013) (No. 12-6615) (cert. denied). Iagreed with and signed that amicus brief.4 BRANDON L. GARRETT & LEE B. KOVARSKY, FEDERAL HABEAS CORPUS: EXECUTIVEDETENTION AND PosT-CONVICTION LITIGATION (forthcoming 2013)..35CORNELL LAW REVIEW ONLINEto my original Article by colleagues who do not share my sympathiesand approach might have generated arguments with more frictionand sharper points of disagreement, my common interests withProfessors Kovarsky and Vladeck produced very interestingconnections, which I explore further in the brief comments thatfollow.IHABEAS CORPUS STANDING ALONEHabeas corpus and due process should be viewed apart and alsoas complements, as Professor Kovarsky rightly emphasizes.5 Dueprocess cannot satisfy the demand that a habeas judge examinewhether custody is legal. Nor can availability of habeas review reducethe obligation to comport with the Due Process Clause. In myArticle, I emphasized how one of the surprises to manycommentators of the Boumediene v. Bush6 decision was how the Courtdiscussed the affirmative obligation of ajudge to use habeas corpus tomeaningfully review the custody of detainees, independent of anyprior procedures used to review their custody.7 But habeas scholarsmay have been less surprised by these developments. ProfessorVladeck, for example, had powerfully made many of these points inimportant prior works. Moreover, the Supreme Court has long notedthe importance of habeas corpus ensuring a judicial forum to reviewexecutive detentions that have never previously been reviewed by ajudge.I made statements in my Article that the "Suspension Clausedemands that habeas corpus remain in full force where there was noadequate prior judicial process"8 and that "the Suspension Clause canensure that habeas corpus begins where due process ends." Iintended these statements to emphasize the heightened importanceof habeas corpus in such situations, rather than to suggest that thatprocess is fungible. I hope that I equally forcefully emphasized thathabeas process plays a "powerful, independent, and unappreciatedrole standing alone."" The power of habeas process is its elementaland constant demand that a judge examine whether a prisoner'scustody is legally authorized.The Boumediene decision was clear that "the fundamental5 Kovarsky, supra note 2, at 1-2.6 553 U.S. 723 (2008).7 See Garrett, supra note 1, at 87 ("The [Boumediene] Court . . . articulatedthroughout that it relied on the Suspension Clause alone to secure habeas processindependent of any prior process.").8 Id. at 124.9 Id. at 47.10 GARRETT& KOVARSKY, supra note 4, at 126.36 [Vol.98:35HABEAS CORPUS STANDING ALONEprocedural protections of habeas corpus" do not depend in any wayon due process rights;" in fact the Court noted that even ifadministrative procedures used to screen enemy combatant detaineeswere assumed to "satisfy due process standards, it would not end ourinquiry." 2 Therefore, I view Boumediene as quite emphatic that theSuspension Clause entitled executive detainees to a judicial habeasprocess apart from any prior status determination.That said, the Supreme Court has linked the two concepts ofhabeas corpus and due process in one unavoidable way and in oneunfortunate way. Let's start with the unfortunate one. I agree withProfessor Kovarsky that it was particularly unfortunate that all nineJustices in Boumediene agreed that an "adequate" substitute for habeascorpus is possible. The Boumediene opinion need not have reachedthat question, and the Court in some places undermined thedirectness of its reasoning by digressing, perhaps because of Justices'interest in making a more comprehensive statement of their habeasjurisprudence. However, the Court in Boumediene was right toemphasize that any substitute for habeas corpus should be rarelytolerated, and only then where the substitute is not merely"adequate," but rather a near-identical form of judicial review. TheCourt could have made much clearer the fact that the situations inwhich it had approved such a "substitute" in the past were verylimited situations, which were not designed to limit access to judicialreview, and were not complete substitutes for habeas (e.g., each suchstatute contains a Savings Clause permitting some resort to habeascorpus 14).The unavoidable way that the Boumediene Court linked habeascorpus and due process was to address what it means for a judge tooffer a detainee a "meaningful opportunity" to demonstrate unlawfulconfinement.'1 The Court did not detail the process that theSuspension Clause required, although it did provide some directionto the lower courts. Perhaps the Court could have provided morespecific directions to lower courts, or perhaps the Court should haveintervened as the case law developed in the years since Boumediene.The Court in Boumediene did suggest that, while not absolved oftheir independent obligation to examine the legality of custody,11 Boumediene, 553 U.S. at 798.12 Id. at 785.13 See Kovarsky, supra note 2, at 7-8.14 As I discuss in Part II.B.2 of my Article, the Court cited to United States v. Hayman,342 U.S. 205 (1952) and Swain v. Pressley, 430 U.S. 372 (1977), both of which dealt withpost-conviction statutes designed to replicate habeas corpus and which created safety-valveprovisions designed to permit recourse to habeas filings. See Garrett, supra note 1, at 83-84. The relevant statutes from Hayman and Swain are published at 28 U.S.C. § 2255(2006); D.C. CODE § 3 -110(g) (2001).15 Boumediene, 553 U.S. at 779.2013] 37CORNELL LAW REVIEW ONLINEfederal judges may defer to administrative development of a factualrecord.b But such deference may not be justified at all if the priorevaluators were not federal judges or if they followed shoddyprocedures. Framing the deference to prior factfinding as a questionof whether the prior process is an adequate "substitute" to habeascorpus is problematic, though the notion that federal judges may attimes defer to the findings of others who have previously approvedcustody is not.Since habeas corpus is a judicial power, it is only as strong as thereviewing judges. When federal judges are reluctant to exercise thewrit, perhaps when faced with challenges to executive assertions ofpower over prisoners, there may be little that the Supreme Court cando except to exhort judges to take their roles seriously.IIAN APPLICATION TO EXTRADITIONOn the subject of judges reluctant to meaningfully examine theauthorization for custody, Professor Vladeck's response explores atroubling extradition case ruling in which, having concluded thatadministrative officials satisfied due process, the court ordered thatno further inquiry into the legality of custody should follow." TheNinth Circuit in the Trinidad y Garcia case," as Professor Vladeckdescribes, was badly split in its en banc ruling regarding a claim by anextraditee that he would face torture upon removal. Statutes andregulations describe what the Secretary of State must do to complywith treaty obligations before extraditing a detainee who makes atorture claim. Specifically, the Secretary must make a determinationof whether torture will "more likely than not" occur.'' The percuriam opinion held that "[t] he process due here is that prescribedby the statute and implementing regulation.""' That may be true forthe Secretary. But how about for the federal judge: is the judge todefer completely to the Secretary, or must the judge inquire intowhether there may be torture upon extradition? The per curiamopinion stated that if the Secretary provides a declaration ofcompliance with the statute and regulations, then "the court's inquiryshall have reached its end and Trinidad y Garcia's liberty interestshall be fully vindicated."'16 See id. at 782.17 See Vladeck, supra note 2, at 22.18 Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc) (percuriam).19 22 C.F.R. § 95.2(b) (2012).20 Trinidady Garcia, 683 F.3d at 957.21 Id. The Court added, "[tio the extent that we have previously implied greaterjudicial review of the substance of the Secretary's extradition decision other than38 [Vol.98:35HABEAS CORPUS STANDING ALONESome of the Ninth Circuit judges went further and argued thatthe process due was simply the statutory process, and therefore thejudge would not inquire into the legality of the custody at all." Twoconcurring judges argued that "the scope of habeas review allowscourts to examine whether the Secretary has complied with her non-discretionary obligations." 3 Under that view, apparently the view ofthe plurality, the role of the federal judge is simply to ensure that theSecretary of State in fact complied with the procedural obligations.That reasoning conflates due process with habeas corpus. Evenassuming that the Secretary complied with the applicable procedures,the federal habeas judge has an independent obligation to assurethat the custody is legal. The decision whether to approve theextradition may be deferential to factfinding conducted by theSecretary, and it may take into account that further judicial process isanticipated in the receiving country (although here the detaineealleges that he faced torture). However, the federal judge is notabsolved of the obligation to make some determination of the legalityof the custody. I therefore completely agree with Professor Vladeckthat the real question is how much process provides the detainee withthe "meaningful opportunity" that the Suspension Clause requires. Ialso agree that it is somewhat counterintuitive that sometimes habeascorpus entails more process than the Due Process Clause requires.That is the elemental power of habeas corpus.IIIWHEN Is REVIEW COLLATERAL?How about the converse problem: whether the presence ofhabeas corpus as a form of review of custody can reduce theobligation to comport with due process? I did not focus on theinteresting question that Professor Kovarsky develops, 4 and I agreewith him that there is no good argument that more collateral processcan somehow make up for an absence of prior process. The Hamdiplurality, as Professor Kovarsky describes well, 5 certainly muddies thewaters by, in places, hinting at something along those lines. One ofthe welcome aspects of the Boumediene opinion was the added clarityon the differences between habeas process and prior process: theCourt emphasized that whether the custody is legal is a separatehabeas question, regardless of what procedures were used to establishcustody. Indeed, in cases like Boumediene in which prisonerscompliance with her obligations under domestic law, e.g., Cornejo-Barreto v. Seifert, 218F.3d 1004, 1012 (9th Cir. 2000), we overrule that precedent."22 See id. at 984 (Tallman,J., dissenting).23 Id. at 961 (Thomas, J., concurring) (oined by Wardlaw, J.).24 See Kovarsky, supra note 2, at 10-14.25 See id. at 4-5.2013] 39CORNELL LAW REVIEW ONLINEchallenge executive detention, habeas corpus is not even clearly"collateral," since there has been no prior judgment orjudicial rulingof any kind. Habeas may be the first judicial review. As ProfessorKovarsky develops in a forthcoming article, habeas corpus is a powerof Article III judges.b The Boumediene Court emphasized theimportance of having an "Article III court in the exercise of its habeascorpus function" review the record supporting a detention.27 While ajudge might have reason to defer to a judgment of another judge, oreven factfinding by an administrative agency, a judge has noobligation to defer to a mixed legal and factual conclusion reachedby a non-judge.IVFACTUAL REVIEWBefore Boumediene, many thought that the focus of the SupremeCourt's Suspension Clause jurisprudence was the need for a federaljudge to examine questions of law, particularly constitutionalquestions. The Court explained in Bounmediene that habeas "entitlesthe prisoner to a meaningful opportunity to demonstrate that he isbeing held pursuant to 'the erroneous application or interpretation'of relevant law."28Boumediene emphasized the need to examine questions of fact: isthis person the type of person whose custody is authorized?Innocence claims bear a family resemblance to such claims regardingthe factual legality of custody. I agree completely with ProfessorKovarsky that claims of innocence assert a possible defect in priorprocess and that procedural due process is a logical grounding forthe underlying claim. I have argued as much in other work focusedon innocence claims." ' However, as to the post-conviction habeasprocess that the judge carries out-the authority to inquire intonewly discovered evidence, conduct hearings, and developdiscovery-the Suspension Clause may support the authority of thejudge to do that work. The reasoning of Boumediene also underminesthe reasoning that the Court adopted when declining to recognize aDue Process or Eighth Amendment actual innocence claim: thathabeas judges traditionally lacked the ability to examine factualquestions. Boumediene and the rest of the executive detentionjurisprudence emphasize that habeas at its core is centrallypreoccupied with factual questions concerning whether a person's26 See Lee B. Kovarsky, A Constitutional Theory of Habeas Power, 99 VA. L. REV.(forthcoming 2013).27 See Boumediene v. Bush, 553 U.S. 723, 790 (2008).28 Id. at 779 (quoting Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 302(2001)).29 See, e.g., Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REv. 1629 (2008).40 [Vol.98:35HABEAS CORPUS STANDING ALONEcustody is authorized. Why, as a constitutional matter, the Courtcontinues to view the question of the imprisonment of an innocentperson as non-cognizable is hard to fathom.One of the many important questions relating to the role ofhabeas judges as factfinders is before the Court this next Term: theCourt is considering whether to recognize an equitable innocence-based exception to the statute of limitations governing federal post-conviction habeas.30  That case raises the type of question thatBoumediene and the Suspension Clause should influence: a questionnot concerned with the scope of an underlying due process or otherconstitutional claim, but rather with the equitable power of thefederal judge to develop factual evidence related to innocence andexcuse procedural defects in a case based on such factual evidence.VTHE SHADOW OF THE SUSPENSION CLAUSEThe theme of the last part of my original Article is that theshadow of the Suspension Clause may have influenced seeminglyunrelated statutes governing judicial review and habeas jurisprudenceacross different areas of habeas corpus.3' Perhaps there is somecommon ground in cases that range from extradition to immigrationremoval to national security detention to post-conviction challengesto criminal convictions. Habeas corpus has long been thought of asan internally specialized subject. Post-conviction lawyers have hadlittle reason to engage with lawyers litigating Guantanamo cases orimmigration removal challenges. The Suspension Clause, I argue,suggests a common structure for judicial review. Article III does so aswell, but was not my focus. The Due Process Clause and other rightsprovisions also structure what can be litigated in a challenge to thelegality of custody. The Suspension Clause structures the writ in adifferent way.The bare Suspension Clause command that a federal judge askwhether a detainee's custody is authorized ensures a meaningfulprocess apart from the standards and procedures regulating initialdecisions to place individuals in custody. That core aspect of habeascorpus has had a powerful gravitational effect on a host of doctrines.In some key areas, legislators have tried to avoid Suspension Clauseproblems, and in others, judges have interpreted statutes governingjudicial review to do the same. Even if the Court had avoided statingthe stark principle clearly before Boumediene, and even though theCourt did not develop many of the specific procedures to be followedwhen deciding Boumediene, the elemental force of the Suspension30 See McQuiggin v. Perkins, 133 S.Ct. 527 (2012) (cert. granted).31 Garrett, supra note 1, at 111-21.2013] 4142 CORNELL LAW REVIEW ONLINE [Vol.98:35Clause will continue to ensure that detentions are reviewed. Habeascorpus, more than due process, will haunt future efforts to stripfederal judges of their habeas power of inquiry.

Habeas Corpus Standing Alone: A Reply to Lee B. Kovarsky and Stephen I. Vladeck

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Habeas Corpus Standing Alone: A Reply to Lee B. Kovarsky and Stephen I. Vladeck

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