I Just Dropped In to See What Condition My Condition Was In: The Availability of Habeas Corpus to Contest Conditions of Confinement at Guantanamo Bay

John Amble Johnson*

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Table of Contents

I…….. INTRODUCTION AND BACKGROUND
II……. ANALYSIS
a… A Proposed Rule
b… Habeas Corpus as a Swiss Army Knife
c… Horizontal, Not Vertical, Separation of Powers
d… Policy Considerations Supporting the Proposed Rule
III….. CONCLUSION

“To adopt and apply a policy of cruelty anywhere within this world is to say that our forefathers were wrong about their belief in the rights of man, because there is no more fundamental right than to be safe from cruel and inhumane treatment . . . .  Where cruelty exists, law does not.”

—Alberto J. Mora, former U.S. Navy General Counsel[1]

I.  INTRODUCTION AND BACKGROUND

In the months after the September 11, 2001 terrorist attacks, the United States Defense Department selected the Naval Base in Guantánamo Bay, Cuba, to hold and interrogate terrorist suspects.[2]  There, agents of the United States government subjected detainees to beatings,[3] sexual humiliation,[4] and other abuses.[5]  Guantánamo Bay has been under United States control since a 1903 treaty with Cuba.[6]  It was selected to house detainees, at least in part, on the assumption that detentions outside of the United States would be beyond federal courts’ jurisdiction, and therefore avoid judicial review.[7]  At the time of this writing, the United States holds 91 detainees at Guantánamo Bay, and around 780 in total have been in custody.[8]

Because prison administrators and the officials who set policy have near total control over prisoners’ lives, prisoners’ basic human rights are vulnerable.[9]   Society must strive to prevent violations of these rights:

“Ultimately, you judge the character of a society, not by how they treat their rich and the powerful and the privileged, but by how they treat the poor, the condemned, the incarcerated.  Because it’s in that nexus that we actually begin to understand truly profound things about who we are.”[10]

However, protections must be balanced against the fact that Guantánamo detainees have forfeited some of their constitutional rights by performing heinous acts.[11]

United States law traditionally provided prisoners with two separate protections depending on the nature of the claim: if the prisoner contests his or her conditions of confinement, § 1983[12] suits and Bivens claims are available.  Originally enacted in 1871 as the Ku Klux Klan Act,[13] § 1983 provides for damages against parties that violate individuals’ constitutional rights; its application has grown to include contesting prison conditions.[14]  Bivens cases, named for Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, create a similar mechanism for suits against federal officers violating the Constitution in their official capacity.[15]

If, on the other hand, the prisoner contests the fact or duration of imprisonment, habeas corpus, which allows individuals to challenge the legality of their imprisonment before a court, is the remedy.[16]  Habeas corpus originated in English common law beginning around the 1300s and was codified in modern form in England in 1679.[17]  The United States Constitution explicitly includes and preserves habeas corpus rights in the so-called Suspension Clause.[18]  However, habeas corpus’s procedure and scope are specified by statute,[19] not the Constitution; habeas corpus is thus a right proffered by Congress, and Congress may determine the lower courts’ capacity to hear statutory habeas corpus claims, as long as it conforms to the Constitution in doing so.[20]

Since habeas corpus presents claimants with greater procedural hurdles, such as a more restrictive statute of limitations and a denial of successive petitions, prisoners generally prefer the other actions.[21]  However, the line between these types of actions prevents easy demarcation, since the broad language of § 1983 and Bivens overlaps with that of federal statutes outlining the right to habeas corpus.[22]  The imperviousness of the line is in question, too: the Supreme Court has never held that habeas corpus is categorically unavailable to contest prison conditions.  In Preiser v. Rodriguez, for example, the Court funneled prison litigants into habeas claims and away from § 1983 claims, but it hedged that its holding should not be read to say “that habeas corpus may not also be available to challenge . . . prison conditions.”[23]  Further complicating the divide between habeas and the other claims is the unique body of law that has emerged regarding prisoners held at Guantánamo Bay.

The Detainee Treatment Act of 2005 (DTA) amended the habeas corpus statute to limit jurisdiction over Guantánamo Bay detainees to the D.C. Circuit Court of Appeals, and it further confined courts’ role to two inquiries: (1) whether military tribunals followed their own procedures; and (2) whether the proceeding was constitutional.[24]  The Military Commissions Act of 2006 (MCA) explicitly made the DTA applicable to current and past Guantánamo detainees.[25]  As a result of the DTA and the MCA, United States law denied Guantánamo detainees habeas corpus in one sub-section, and it denied them ways to contest their prison conditions in the very next sub-section.[26]

In response, the Supreme Court in Boumediene v. Bush explicitly held that the Suspension Clause of the Constitution, which preserves habeas corpus, is in “full effect at Guant[á]namo Bay,”[27] and the MCA was “an unconstitutional suspension of the writ.”[28]  The decision voided the half of the MCA that had stripped detainees’ access to habeas corpus.[29]

Against this backdrop, in 2013 the United States Court of Appeals for the District of Columbia held in Aamer v. Obama that “challenges to the conditions of . . . confinement properly sound in habeas corpus.”[30]  In that case, Guantánamo detainees on hunger strike contested the government’s force-feeding protocol and sought a preliminary injunction forbidding the force-feeding.[31]  The Aamer court held that the force-feeding program was likely valid since it served “legitimate penological interests.”[32]  The court therefore affirmed the lower court’s denial of the detainees’ request for a preliminary injunction, but it also held, significantly, that Guantánamo detainees could contest their prison conditions through habeas corpus proceedings.[33]  The Aamer court identified the First, Second, Third, and Sixth Circuits as taking similar approaches and the Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits as prohibiting use of habeas corpus to contest prison conditions.[34]

This Essay argues that the Aamer court’s result was correct but that its reasoning diminished the relevant distinction between Guantánamo detainees and most United States prisoners: the absence of adequate alternative mechanisms by which to contest conditions of confinement in front of an Article III court.  The issues of federal-state comity and vertical separation of powers that compelled a number of Circuits to deny habeas corpus for contesting prison conditions were absent in the Aamer case.  This Essay argues that habeas corpus should best be understood as a Swiss Army knife, versatile and capable of performing an array of functions to provide Article III oversight of confinement, rather than as a sledgehammer restricted to blunt, limited uses that rashly obliterate the power of other governmental branches.  The “Great Writ”[35] is appropriate as a last line of judicial defense against unconstitutional detention by the United States government.[36]  This should include prison conditions if: first, the government is the custodian of the prisoner; second, prison conditions violate separation of powers principles by exceeding the executive or legislature’s constitutional powers; and third, the prisoners lack adequate alternative mechanisms by which to check the government’s power.  Conversely, if an alternative mechanism exists for the prisoner and is at least as accessible as a habeas corpus petition, the urgency of habeas availability for this purpose diminishes.  In the context of Guantánamo Bay detainees, this proposed rule requires habeas corpus availability and permits federal courts to hear detainees’ habeas corpus claims contesting prison conditions.

II.  ANALYSIS

This Essay first proposes a rule: the courts should hear challenges to governmental confinement that infringes upon constitutional rights, as long as no adequate alternative mechanism is available.  It next considers how this rule aligns with the broad original purpose of the writ: to challenge the legality of confinement.  It then considers the separation of powers engendered by the United States Constitution, noting that habeas corpus jurisdiction for Article III courts is necessary to prevent overreach from the political branches.  Finally, it evaluates policy considerations supporting this approach.

a.  A Proposed Rule

The proposed rule, then, is that prison conditions should be cognizable under a habeas corpus claim if: (1) the government is the custodian of the prisoner, (2) the alleged prison conditions violate separation of powers principles, and (3) the prisoners lack adequate alternative mechanisms by which to check the government’s power.  If an adequate mechanism exists, the federal circuit courts should be able to choose whether or not to require lower courts to allow habeas corpus as a duplicate procedure.

Although the Aamer court did not discuss it, the absence of alternative remedies comprised a substantial portion of the Boumediene Court’s rationale for holding that access to habeas corpus conditions must be preserved.[37]  Such reasoning supports allowing conditions of confinement in habeas corpus proceedings.  Unlike most potential prison litigants, Guantánamo detainees are not able to contest their prison conditions; the MCA strips their ability to employ Bivens or § 1983-style claims.  Habeas corpus should thus outline the minimal guarantees for the procedure of contesting prison conditions.  Although the Guantánamo detainees’ unavailability of civil rights actions is unusual, it is precisely this novelty that calls for a flexible judicial response to the constitutional failures of the political branches.[38]

Two scholars on the issue, Fallon and Meltzer, argue that the functional control the United States has over Guantánamo Bay creates fundamental constitutional rights for individuals detained there.[39]  Even detainees who have been found guilty in military tribunals have not been convicted in the kind of robust, adversarial proceeding[40] that merits the level of confidence that justifies the deprivation of some rights of convicts on United States soil.  While it is unclear how far detainee rights should exceed those of United States penal system prisoners, they deserve at least those rights which the courts have defined as fundamental enough to preserve in prisoners who have been convicted in Article III courts.

Most urgent of these rights is the Eighth Amendment’s prohibition of “cruel and unusual punishment.”[41]  Although courts typically apply the Eighth Amendment to protect people convicted of crimes, the fact that defining the terms “cruel and unusual” falls to the courts[42] indicates its fit as a test for Article III supervision of executive detention in Guantánamo Bay.  Supreme Court precedent on prisoner litigation can provide guidance in defining the minimum rights the government owes Guantánamo Bay detainees in contexts other than the Eighth Amendment.[43]  As in prisons within the United States, penological interests must inform the scope of these constitutional rights.

b.  Habeas Corpus As a Swiss Army Knife

The traditional purview of habeas corpus proceedings has been the legality of the confinement itself.  However, legality of confinement may be understood to include not just the fact of confinement, but also the method.  This reading is just as logical as one that excludes conditions of confinement.  Habeas corpus should be understood as a versatile mechanism through which courts may impose judicial oversight, rather than a rigid, anachronistic procedure that can be wielded heavily or not at all—a Swiss Army knife, rather than a sledgehammer.  “The Great Writ of habeas corpus is the procedural mechanism through which courts have insisted that neither the King, the President, nor any other executive official may impose detention except as authorized by law.”[44]  The Court in Boumediene based its holding on the foundation of this understanding of habeas.[45]

On the other hand, the judiciary is of course also bound by the Constitution and the laws of the United States.[46]  This cautions against capriciously expanding the writ beyond its traditional limits; the writ is not a sledgehammer meant to obliterate traditional use or the discretion of the political branches of government.  For example, Justice Scalia’s dissent in Boumediene argued, first, that “[t]he writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written.”[47]  Understood as such, Justice Scalia reasoned, the writ clearly did not apply to the case at bar.[48]  However, the majority held that the 1789 understanding of habeas corpus constituted the floor of possible protections and that the Court’s precedent had guarded the possibility of expansion.[49]  Their extension to providing habeas protections for non-citizens is instructive: such a blatantly non-traditional application of habeas corpus[50] suggests that use of the writ for contesting prison conditions is not closed merely because such use is non-traditional.

An additional way in which habeas corpus’s vague guidelines support this Essay’s assertions is the wide discretion left to the judge to determine and demand an adequate remedy.  Habeas judges, by statute and history, are able to tailor relief to the facts of the case before them: the current governing statute calls for courts to “summarily hear and determine the facts, and dispose of the matter as law and justice require.”[51]  Wide judicial latitude in remedies justifies the logic of correspondingly wide habeas jurisdiction, the historical exercises of which include courts hearing slaves’ claims in the late 1700s.[52]  This configuration of constitutional habeas corpus best accomplishes the Writ’s purpose of “cut[ting] through all forms and go[ing] to the very tissue of the structure [of unconstitutional detainment].”[53]

c.  Horizontal, Not Vertical, Separation of Powers

The Supreme Court’s approach to separation of powers enables tension amongst the branches when necessary to safeguard the citizenry from any single branch’s abuse of its power.[54]  Within this backdrop, the Court in Boumediene noted the primacy of separation of powers considerations to its reasoning.[55]  The checking function of habeas corpus, relied upon in Boumediene,[56] further suggests a reading of the “legality” of confinement as including the conditions of that confinement.  The Court in Boumediene articulated its fear that allowing the executive and legislative branches to avoid habeas corpus would be equivalent to granting them “the power to switch the Constitution on or off at will.”[57]

The Aamer court’s reasoning, influencing other circuits, improperly diminishes the unique circumstances of Guantánamo Bay.  In Preiser, the Supreme Court emphasized that federal-state comity counsels federal courts to be deferential when considering habeas corpus claims of prisoners convicted in state courts.[58]  Guantánamo detainees, however, have not gone through state courts; as discussed above, habeas corpus for detainees is a mechanism through which courts oversee federal “executive” and “legislative” detainments of individuals.[59]  In fact, judicial oversight of other the federal branches is the original raison d’etre of habeas corpus,[60] and the situations that most call for its implementation are novel federal government detentions like those in Guantánamo Bay.

The importance of such a safeguard was demonstrated in the pre-Boumediene case involving Ahmed Abu Ali.  Abu Ali, who had grown up in Virginia, was arrested in Saudi Arabia in 2003, and he successfully applied for a “jurisdictional discovery” contesting his detention; in response to the scheduled inquiry, the government brought him to the United States and successfully and uneventfully pursued normal criminal charges, which resulted in a life sentence in prison.[61]  Courts ensure criminals are punished and society is protected, but they also must ensure robust protection of accused criminals to maximize societal confidence in the punishment and detention of prisoners.

d.  Policy Considerations Supporting the Proposed Rule

Consequences are important in both the context of America’s war on terror and the checks against governmental tyranny through unconstitutional confinement.  In providing judicial oversight of government officials’ actions, permitting habeas corpus review of prison conditions disincentivizes the use of torture as an interrogator technique.  Torture produces dubious information and erodes international cooperation and goodwill.[62]  Further, and most importantly, unfettered expansion of the political branches would be checked, and global politics would have one fewer source of analogies to Kafka stories.

On the other hand, there are reasons that courts would want to limit availability of the writ when other mechanisms for contesting conditions of confinement are available.  Efficiency may call for a reduction of suits that have more petitioner-friendly alternatives.  This may be especially true if a habeas claim would be a litigant’s second bite at the apple—that is, if the litigant had already failed in pursuing the identical claim through alternative measures.  Further, keeping the writ for its traditional use fits with the preference to avoid judicial alterations of the status quo.[63]

The purposed rule therefore safeguards the structural constitutional protections denied to Guantánamo detainees, while preserving the existing law that governs habeas corpus on United States soil.  Further, the purposed rule would embody habeas corpus’s essential function as a method for Article III courts to check the political branches’ unconstitutional individual detentions.  Finally, this use of habeas corpus would deter future incursions by the political branches and provide a blueprint for future court actions.

III.  CONCLUSION

When the D.C. Circuit considered in Aamer whether to allow detainees to contest prison conditions, Guantánamo Bay created a unique backdrop that distinguished Aamer from similar cases in other circuits.  Despite an executive order from President Obama on his first day in office,[64] Guantánamo Bay remains open, and the government still holds detainees there.  The Supreme Court should reassert the principles it articulated in Boumediene to check the political branches.  Habeas corpus should be available to contest conditions of government confinement when the allegation of such conditions arises to a constitutional overreach by the political branches and other remedies are unavailable.  Such a rule reflects the Founders’ understanding of habeas corpus as a flexible tool capable of ensuring judicial oversight of the political branches’ detentions while avoiding unconstitutional judicial overreach.

Some tasks require great force and are best accomplished with a blunt, heavy instrument like a sledgehammer.  Other tasks, however, require delicacy and versatility.  Habeas corpus, understood as an Article III Swiss Army knife, serves as the best tool for the task of maintaining individual liberties against threats from the government while simultaneously allowing the President and Congress to conduct foreign affairs.


*John Amble Johnson is a student at the University of Georgia School of Law. He would like to express his gratitude to Professor Wells for guiding the research and drafting of this article. Amble would also like to thank the Volume 50 Georgia Law Review managing, editorial, and executive board students and staff for their editing and research. In particular, Leah Davis, Payton Bradford, and Gracie Waldrup provided crucial help throughout the revision process. Finally, Amble wishes to thank Amy, Sam, Eve, and his parents, with oceans of love, for their inspiration and support.

     [1]  Alberto J. Mora, Former General Counsel, United States Navy, Acceptance Speech of the John F. Kennedy Profile in Courage Award (May 22, 2006), available at http://www.jfklibrary. org/Events-and-Awards/Profile-in-Courage-Award/Award-Recipients/Alberto-Mora-2006.aspx? t=3.

     [2]  Jonathan Hafetz, Habeas Corpus After 9/11: Confronting America’s New Global Detention System 28 (N.Y. Univ. ed., 2011).

     [3]  Ctr. for Constitutional Rights, Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba 20 (2006), available at http://ccrjustice.org/sites/default/files/assets/Report_ReportOnTorture.pdf.

     [4]  Jess Bravin, ‘Imagine the Worst Possible Scenario’: Why a Guantanamo Prosecutor Withdrew From the Case, Atlantic, Feb. 11, 2013, http://m.theatlantic.com/national/archive/ 2013/02/imagine-the-worst-possible-scenario-why-a-guantanamo-prosecutor-withdrew-from-th e-case/273013/.

     [5]  Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantánamo, N.Y. Times, Nov. 30, 2004, http://www.nytimes.com/2004/11/30/politics/30gitmo.html?pagewanted=all&_r=0.

     [6]  Hafetz, supra note 2, at 28.

     [7]  See id. at 29 (discussing a 2001 memorandum by an executive branch lawyer, citing extra territorially as the reason for the selection of Guantánamo Bay).

     [8]  Andrei Scheinkman, The Detainees, N.Y. Times: The Guantánamo Docket, http:// projects.nytimes.com/guantanamo/detainees (last visited Apr. 2, 2016).

     [9]  See Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (“For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless.”).  The same reasoning applies to federal prisoners.

   [10]  Bryan Stevenson, Founder and Executive Director, Equal Justice Initiative, Address to TED Conference: We Need to Talk About an Injustice (Mar. 2012), available at https://www. ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice/transcript?language=en.

   [11]  See, e.g., Andrei Scheinkman et al., Khalid Shaikh Mohammed, N.Y. Times: The Guantánamo Docket, http://projects.nytimes.com/guantanamo/detainees/10024-khalid-shai kh-mohammed (last updated Sept. 28, 2015) (characterizing Guantánamo detainee Khalid Shaikh Mohammed as masterminding the idea for the September 11, 2001 terrorist attacks).

   [12]  42 U.S.C. § 1983 (2012).

   [13]  Monroe v. Pape, 365 U.S. 167, 172 (1961), overruled in part by Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 700 (1978).

   [14]  Sheldon H. Nahmod, Constitutional Accountability in Section 1983 Litigation, 68 Iowa L. Rev. 1, 1–2, 15 (1982).

   [15]  403 U.S. 388, 397 (1971).

   [16]  Black’s Law Dictionary 778 (9th ed. 2009).

   [17]  Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Great Writ 5–6 (Univ. of Chi. ed., 2011).

   [18]  U.S. Const. art. I, § 9, cl. 2.

   [19]  28 U.S.C. §§ 2241–2255 (2012).

   [20]  See, e.g., Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within Constitutional bounds, Congress decides what cases the Federal Courts have jurisdiction to consider.”).

   [21]  Nancy J. King & Suzanna Sherry, Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences, 58 Duke L.J. 1, 5, 11–12 (2008).

   [22]  See Maureen A. Dowd, Note, A Comparison of Section 1983 and Federal Habeas Corpus in State Prisoners’ Litigation, 59 Notre Dame L. Rev. 1315, 1325 (1984) (“Section 1983’s broad scope conceivably envelops all habeas corpus petitions to federal courts by state prisoners.”).

   [23]  411 U.S. at 499.

   [24]  Pub. L. No. 109-148, § 1005(e), 119 Stat. 2680, 2741–42 (2005).

   [25]  Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635–36 (2006).

   [26]  28 U.S.C. § 2241(e)(1)–(2) (2012).

   [27]  553 U.S. 723, 771 (2008).

   [28]  Id. at 733, 792.

   [29]  28 U.S.C. § 2241(e)(1) (2012).

   [30]  742 F.3d 1023, 1026 (D.C. Cir. 2014).

   [31]  Id.

   [32]  Id. at 1041.

   [33]  Id. at 1026.

   [34]  Id. at 1036–38.

   [35]  Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079, 1080 (1995).

   [36]  See, e.g., King & Hoffman, supra note 17, at 167 (“[H]abeas must always remain a flexible judicial remedy, adaptable to enforce the rule of law and protect individual liberty whenever either detention practices or detention law shifts significantly.”).

   [37]  See Boumediene, 553 U.S. at 792 (“[T]he Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus.”).

   [38]  See Hafetz, supra note 2, at 257 (“The vitality of habeas has become clearer since 9/11, both despite and because of the sustained efforts by the executive and Congress to eliminate it.”).

   [39]  Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2094 (2007).

   [40]  See Hafetz, supra note 2, at 130 (explaining the military tribunals).

   [41]  U.S. Const. amend. VIII.

   [42]  See, e.g., Graham v. Florida, 560 U.S. 48, 69 (2010) (stating that Courts “determine whether a punishment is cruel and unusual”).

   [43]  For example, Thornburgh v. Abbott would be instructive on a detainee’s First Amendment rights.  See 490 U.S. 401, 413–15 (1989) (applying a reasonableness standard to what publications inmates may receive, in light of the XLE prison’s safety interests).  Turner v. Safley established the requirement that infringement must be “reasonably related to legitimate penological interests.”  482 U.S. 78, 89 (1987).

   [44]  Fallon & Meltzer, supra note 39, at 2032.

   [45]  See Boumediene, 553 U.S. at 779 (“[C]ommon-law habeas corpus was, above all, an adaptable remedy.  Its precise application and scope changed depending upon the circumstances.”).

   [46]  See, e.g., Marbury v. Madison, 5 U.S. 137, 179–80 (1803) (“[T]he framers of the constitution [sic] contemplated that instrument, as a rule for the government of courts, as well as of the legislature.”).

   [47]  Boumediene, 553 U.S. at 832 (Scalia, J., dissenting).

   [48]  Id. at 843–49.

   [49]  See id. at 746 (citing INS v. St. Cyr, 533 U.S. 289, 300–01 (2001)) (noting the possibility that Suspension Clause protections have expanded over the last two hundred years and the establishment of the 1789 understanding of the Suspension Clause as the absolute minimum protection for habeas corpus).

   [50]  See id. at 847 (Scalia, J., dissenting) (“Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction.”).

   [51]  28 U.S.C. § 2243 (2012).

   [52]  Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 675 (2008).

   [53]  Boumediene, 553 U.S. at 785 (citing Frank v. Mangum, 237 U.S. 309, 346 (1915) (Holmes, J., dissenting)).

   [54]  See, e.g., Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.  The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”).  But see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”).

   [55]  Boumediene, 553 U.S. at 746.

   [56]  Id. at 765–66.

   [57]  Id. at 765.

   [58]  411 U.S. at 491.

   [59]  See supra notes 16–20 and accompanying text.

   [60]  Lee Kovarsky, A Constitutional Theory of Habeas Power, 99 Va. L. Rev. 753, 795 (2013).

   [61]  Hafetz, supra note 2, at 196–97.

   [62]  See, e.g., id. at 233–35 (arguing that torture is empirically ineffective, has produced misinformation in the war on terror that cost lives, encourages terrorism by inspiring revenge, and leads to discord between the United States and its allies that are opposed to such methods of interrogation).

   [63]  See, e.g., J. Richard Broughton, The Jurisprudence of Tradition and Justice Scalia’s Unwritten Constitution, 103 W. Va. L. Rev. 19, 32 (2000) (“[T]he Supreme Court has routinely referred to social and political traditions and customs when explaining the meaning of the constitutional text.”).

   [64] Senate Select Comm. on Intelligence, Comm. Study of the Central Intelligence Agency’s Detention and Interrogation Program 171 (2014), http://www.intelligence.sen ate.gov/study2014/sscistudy1.pdf.

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