Justice Breyer on Korematsu and the Guantanamo Cases

This afternoon, the Brookings Institution was honored to host Justice Stephen Breyer for a lively discussion, which I moderated, on his new book: Making Our Democracy Work: A Judge's View. The full audio is available on the Brookings web site, as is a transcript. This brief video clip, however, seems to me of special interest to Lawfare readers. Justice Breyer's book, among many interesting themes, argues strongly for judicial consideration of the consequences of different available interpretations. The book's final substantive chapter deals with the Guantanamo cases. So I asked Justice Breyer about the consequences of the court's decision to assert jurisdiction over Guantanamo. Wasn't the chief consequence to guarantee that no detainee would ever be brought to the facility again but would be held instead in facilities further away from the United States and more out of sight? Wouldn't the same instinct that caused the Bush administration to bring people to Guantanamo in the first place--the desire to evade judicial review--now guarantee that subsequent administrations keep people away from Guantanamo, preferably in the hands of foreign proxies over whom the courts have no conceivable jurisdiction? What is the consequence of having a strong rule of law norm at one particular location and no comparable rule applicable elsewhere? Justice Breyer's addressed this question at a high level of altitude, covering a great deal of historical and conceptual ground. His bottom line seems to be that the cases are, at this stage, still of a question mark. To summarize his answer, he sees the Guantanamo cases as an effort to answer the question posed by the court's failure in Korematsu to engage in any meaningful oversight of the executive during wartime: Can at court hold the executive accountable to the Constitution without running a war? He acknowledges the risk of judicial micromanagement of the conduct of warfare, and he therefore sees a duty to rule narrowly--to do less judicially, rather than more. And he thinks the court has threaded the needle here. But he isn't sure, and he seems to acknowledge the possibility that the majority in these cases will some day be seen to have erred in a kind of mirror image of the Korematsu court's passivity. The entire exchange ran as follows: