Comment: The recent Supreme Court decision on Guantanmo detainees rests on a 5-4 vote, with the dissent expressing concern of its adverse impact on national security and the inevitable risk it poses to the safety of Americans. The ruling gives enemy combatants access to our court system which has no experience with national security matters, exposing classified and secret evidence to our enemies. At worst, those combatants who are freed, and whose countries refuse to accept them back, can be released into our general population, effectively jumping the immigration bar whose laws would have excluded them from entry into the US based on terrorist related activities.
No mention is made in any of the below 3 articles that the Geneva Convention permits detention of enemy combatants until the end of hostilities. Why then, should we give these enemies of the US rights above international law?
Michael Mukasey outlines how Congress must come to the rescue in response to the Supreme Court ruling. Habeas corpus hearings could set terrorists free inside the U.S.
By MICHAEL B. MUKASEY
* Article
Last June in Boumediene v. Bush, the Supreme Court ruled for the first time in our history that aliens captured and held as enemy combatants abroad (in this case, at the Guantanamo Bay military base) had a constitutional right to challenge their detentions by filing petitions for habeas corpus in federal court. The Court recognized that its holding was unprecedented. Yet it said that it was not deciding how such proceedings should be conducted, or even what the government must show to prevail.
[Commentary] David Klein
Yesterday, the federal district court in Washington concluded the first such habeas proceeding for six detainees. It held that the government had established a basis for holding only one of them as an enemy combatant. The court acknowledged that the evidence the detainees were planning to travel to Afghanistan to join the fight was perfectly appropriate for use as intelligence (the purpose for which it was collected) -- but that such evidence was not sufficient to carry the government's burden of proving in court that the detainees were enemy combatants.
Of course, we believe that the court should have reached a different conclusion with respect to the five detainees. But on a more general level, the court's order highlights the challenges that inhere in applying a civil litigation framework to wartime decisions that often must be made on the basis of the best available intelligence.
Other federal courts hearing the approximately 250 Gitmo habeas cases have sought to answer similar questions. But as different judges reach different answers -- and as some of those answers, I fear, create risks for our national security -- there remains a pressing need for Congress, working with the administration, to establish one set of rules that is both consistent with the Supreme Court's decision and recognizes the important national security and intelligence interests of the United States.
The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an "enemy combatant" during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee "released"? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won't accept him or because we fear he might be mistreated upon his return?
In July, I urged Congress to work with the administration to fashion a uniform set of rules for these cases, expressing two basic concerns with leaving these matters to the courts. The first was that the courts would reach inconsistent decisions, leading to protracted litigation and the likelihood of different procedures in different cases.
The second was that the courts would not be well-positioned to address fully our national security and intelligence interests. As a former federal judge, I know well the constraints on federal courts. They cannot find facts on their own and are limited to the evidence presented by the parties before them. By contrast, Congress and the executive branch are well equipped to learn and evaluate facts, and skilled in balancing the difficult policy choices at stake.
In the absence of legislation, however, the courts have proceeded with these cases. I appreciate the difficulty of the task that these judges were given, and I believe they have done an admirable job under the circumstances. Nevertheless, we have seen courts diverging on key issues, meaning that the rules in each case will likely vary significantly and will likely be finally resolved only after multiple appeals.
More importantly, in many cases, the government has faced great difficulty in collecting and presenting evidence in a manner that protects the vital sources and methods upon which our national security depends. Indeed, lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court. Our national security framework, in short, is not -- and should not be -- designed primarily to handle the burdens of discovery accompanying ordinary civil litigation.
Although a new president comes to office in January, these cases are moving forward quickly and the need for legislation is urgent. It is not yet too late for Congress, working with both this administration, and members of the incoming administration, to come together to fix this problem and to develop a sensible framework. Contrary to the conventional wisdom, I believe that Americans agree more than they disagree about the principles that should govern this process.
First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.
Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review.
We should not be forced to choose between continuing to hold a dangerous detainee and jeopardizing the intelligence sources and methods that Americans have risked their lives to obtain, and which our enemies may then render useless.
Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.
Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.
Devising a legal framework to review our military's detention decisions is an unprecedented challenge. It should not be left to the courts alone.
I firmly believe that Congress, the administration, and the incoming administration can work together to establish rules that at once provide a fair hearing and are respectful of the nation's security interests. It is not yet too late, and it certainly is worth the effort to try.
Mr. Mukasey is the attorney general of the United States.
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http://www.washingtonpost.com/wp-dyn/content/article/2008/11/20/AR2008112003356.html?wpisrc=newsletter&wpisrc=newsletter
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"Enough"
A court's ruling exposes the travesty of holding 'enemy combatants' on flimsy -- or nonexistent -- evidence.
Friday, November 21, 2008; A22
"SEVEN YEARS . . . is enough." With those words yesterday, U.S. District Judge Richard J. Leon ordered the release of five Algerians held at the U.S. Naval Base in Guantanamo Bay, Cuba, since January 2002. A conservative appointed by President George W. Bush, Judge Leon also delivered a forceful indictment of the administration's detention decisions and provided indisputable proof of the importance of allowing federal judges to evaluate the secret evidence the government used to justify detentions.
The case, known as Boumediene v. Bush, yielded the first ruling in a habeas corpus proceeding involving Guantanamo detainees. It first came before Judge Leon in 2004, and, at that time, he read the law as not allowing detainees federal court review. The Algerians appealed and ultimately prevailed this summer when the Supreme Court issued a landmark ruling empowering federal judges to review the government's basis for detaining people on the naval base.
In Boumediene, the government relied on a single classified document from an unnamed source. Justice Department lawyers were unable to convince Judge Leon of the validity of the detentions, even though they were held to a low standard of proof. Judge Leon concluded that the document did not prove that the men, captured in Bosnia in 2002, were planning to travel to Afghanistan to fight U.S. forces. The fact that there was no corroborating evidence and that there was little information to help the judge assess the reliability of that source doomed the government's case. "To allow enemy combatantcy to rest on so thin a reed would be inconsistent with this Court's obligation . . . to protect petitioners from the risk of erroneous detention," he wrote. He ordered the five Algerians freed "forthwith," but left the details to the government and did not specify where the men should be sent. He declined to order the release of a sixth man, concluding that the government had provided corroborating evidence that he was an al-Qaeda operative.
In another extraordinary move, Judge Leon urged the Justice Department not to appeal his order that the five be freed, saying: "Seven years of waiting for our legal system to give them an answer to their legal question is enough." The government needs the legal flexibility to hold those it believes are terrorism threats but against whom there is not enough evidence to bring traditional criminal charges. But what Judge Leon revealed in his ruling is the utter travesty that is holding people with virtually no evidence -- and certainly no evidence that can reasonably be considered reliable.
The Justice Department should heed the judge's call and refrain from an appeal. It should work with the departments of State and Defense to find a suitable third country for these detainees. And it should not wait for another judicial rebuke before releasing others who are being held on the basis of feeble or questionable evidence.
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http://www.washingtonpost.com/wp-dyn/content/article/2008/11/20/AR2008112003005.html?wpisrc=newsletter&wpisrc=newsletter
washingtonpost.com
Wrenching Choices on Guantanamo
By Benjamin Wittes
Friday, November 21, 2008; A23
Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic triumphalism, you'd think that Guantanamo is as good as shuttered. President-elect Barack Obama has reiterated his campaign promise to close it, and some self-described advisers talk as though he'll wave a magic wand on Jan. 20 and a problem that has bedeviled this country for seven years will evaporate.
Closing Guantanamo won't be easy, at least not if Obama means to change the substance of American detention policy rather than merely altering its geography. Obama could, to be sure, fulfill his promise simply by moving detainees to a different facility while continuing to hold them as "enemy combatants." The challenge of closing Guantanamo would then come down to a series of logistical and administrative questions.
Solving the Guantanamo problem means making important decisions about detention policy in combating terrorism more generally: When, if ever, should the United States engage in preventive detention of terrorism suspects? If and when it does, should it treat them as enemy combatants under the laws of war or under some other body of law, perhaps a new detention statute? What rights should they have? What should the government have to prove about them, to what standard of proof, and in what sort of forum?
Notwithstanding the idea projected by some members of his camp that closing Guantanamo is simply a matter of will, Obama cannot just wish these questions away. Indeed, they defy answers in the absence of a systematic and rigorous review of the detainee population itself, including the classified information about each prisoner. This process, carried out properly, will not take place instantly.
There are three major groups of detainees at Guantanamo, each presenting distinct policy problems. For starters, there are detainees who could face trial. Most people regard criminal prosecution as the best means of neutralizing terrorism suspects and justifying their long-term detention, and some people regard trial as the only legitimate means of locking up America's enemies. But how big is the group that might plausibly face charges? And to what extent does its size depend on which forum the government uses for prosecution? Is it a much smaller group if America tries these people in federal courts or courts-martial than if it continues using President Bush's much-derided military commissions? Without knowing the answer to these questions, one cannot accurately assess the costs and benefits of America's trial options.
Second, roughly 60 detainees have been cleared for release or transfer from Guantanamo but are stuck there because of fears of mistreatment at the hands of their own governments. Will Obama have an easier time than Bush in persuading third countries to accept these detainees, particularly if he accepts a few of them into the United States? That may well be the case, but without serious diplomatic engagement over the question, we simply can't know how intractable this problem will prove to be. The ruling yesterday by a federal judge in Washington that five of six detainees in one case were held unlawfully raises the additional question of how many detainees should simply be released.
Third and most troublesome are the detainees too dangerous to be released but who cannot face criminal charges. How many, if any, this group contains will ultimately shape Obama's policy. Detainees who pose a grave national security threat might be unprosecutable for a variety of reasons: because of deficiencies in the criminal law as it stood in 2001, because evidence against them would not stand up in court, because the government might not have enough evidence to convict or because it obtained key evidence under coercive conditions. If there are only a few such detainees, and the danger they pose seems manageable, those of us who have advocated a preventive detention system should reconsider our position. On the other hand, some human rights advocates acknowledge privately that they may reconsider their categorical opposition to preventive detention if the group proves substantial and the danger it poses too significant to ignore. Right now, we can only guess at this group's size.
It matters enormously, in short, who each detainee really is. Only a true ideologue -- and Obama shows no sign of being that -- would develop a policy concerning Guantanamo without studying the population carefully and thinking these questions through. It's reassuring simply to assert that these cases present no tension between America's needs and her values. But that judgment is at least premature and may well prove dead wrong. In the short term, it does an injustice to the outgoing administration, many current and former members of which have struggled with these questions over seven long years. It also disserves the incoming administration, which will soon inherit detainees who defy such sloganeering and whose handling will require wrenching choices with no easy answers.
Benjamin Wittes, a former editorial writer for The Post, is research director in public law at the Brookings Institution and the author of "Law and the Long War: The Future of Justice in the Age of Terror."
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