Judge Robertson on Habeas Legislation

Former U.S. District Judge James Robertson published this interesting letter to the editor in the Washington Post. Judge Robertson is, to my knowledge, the first member of either the district court or the court of appeals to publicly express comfort with the role the judges have been asked to play in the Guantanamo habeas cases and to argue that the judges have all the legal guidance they need to do their job. By contrast, several other judges (including, most recently, Chief Judge Royce Lamberth) have expressed discomfort with the absence of legislative guidance and criticized the Supreme Court for giving such limited substantive guidance in Boumediene. Judge Robertson insists that "The lower federal courts have all the guidance they need in the Authorization for Use of Military Force and several Supreme Court decisions. What they are doing now is what courts have always done--not “making it up as they go along” but following precedent as best they can and applying the law to the unique facts of each case, one detainee at a time. It’s how the common law and the law of habeas corpus have developed for more than 300 years, and it works. A new statutory standard would only push the restart button."