The Magazine

What to Do About the Gitmo Detainees

The ball is in Congress's court.

Feb 2, 2009, Vol. 14, No. 19 • By STEPHANIE HESSLER
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One promising option is the establishment of a special Article III national security court, an idea that has gained traction across the political spectrum. Andrew McCarthy, who prosecuted Omar Abdel-Rahman, has proposed such a court, and one of President Obama's legal advisers, Laurence Tribe of Harvard, has endorsed something similar. In such a court, classified information could be submitted to the judge in his chambers ex parte, with nonclassified summaries provided to the defendant; or classified evidence could be revealed to the defendant's lawyer only after the lawyer had obtained a security clearance.

Likewise, Congress could amend the Federal Rules of Evidence and the Federal Rules of Criminal Procedure, specifying the process due for alleged alien terrorists. The new procedures could modify discovery rights and evidentiary rules without offending the Constitution.

CONTINUED DETENTION

The Supreme Court has recognized the president's power to detain enemy combatants in time of war. And President Obama acknowledged in his executive order that there may be detainees who cannot successfully be prosecuted, but still pose a danger. The Obama administration may learn that to protect our national security we must use preventive detention, as we have for the past seven years. President Obama can fulfill his campaign promise to "close Guantánamo," but many of the most dangerous detainees may simply have to be transferred to a similar detention center with a different name.

Presuming detainees are moved to a military base or prison in the United States, they will inevitably seek to challenge their detention in federal courts. This summer, the Supreme Court ruled in Boumediene v. Bush that detainees held at Guantánamo could file habeas petitions in U.S. courts to contest their detention. This holding almost certainly will apply to detainees transferred into the United States. (Indeed, a federal judge just held a hearing to consider whether Boumediene reaches a military prison in Afghanistan where the United States holds approximately three times the number of detainees now at Guantánamo Bay.)

In the seven months since Boumediene, Congress has neglected to set up rules to govern these detention proceedings. It has failed to act despite pleas from both the executive and judicial branches: Former attorney general Michael Mukasey urged Congress "to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way." And the chief judge of the U.S. District Court for the District of Columbia asked Congress for "guidance sooner rather than later." These pleas fell on deaf ears. The response of the chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, was to throw up his hands: "I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed."

As a result, federal judges--with no particular national security expertise--have been compelled to make up rules for these proceedings case by case. Judges are left to decide how to handle classified information, witness testimony, discovery rights, and many other issues. And their decisions are bound to vary from courtroom to courtroom, introducing inconsistency and unpredictability. (A district court judge drafted guidelines, but they are discretionary.)

Congress should enact rules to govern suits brought by unlawful enemy combatants challenging their detention. It should assume that the process constitutionally due to alien enemies may be quite different from the process due to U.S. citizens in a criminal case. As the Supreme Court explained in United States v. Hamdi, "enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict."