Last week the Supreme Court ruled that terrorist detainees held by the U.S. military in Guantanamo Bay can challenge their detention in federal court.
Commentators called the ruling a major blow to the Bush administration and looked to the White House for its next move. But any effort by this White House to roll back the Boumediene decision surely would fail, given its breadth and political realities.
That leaves open a question for Congress: Should terrorist detainees have more rights, the same rights or fewer rights than American citizens? If Congress does nothing, it’s made its choice: more rights.
Gitmo detainees have the right to file petitions for habeas corpus in any district court. And they are, en masse. This is a very different kind of habeas than that available to ordinary prisoners.
In 1996 Congress passed the Antiterrorism and Effective Death Penalty Act, or AEDPA, to clamp down on the abuse of habeas petitions by inmates challenging their convictions. The act imposed a few common-sense rules to keep prisoners from deliberately tying up the courts with flimsy legal filings.
Each inmate, for example, now gets only one bite at the apple. They also don’t get to choose which court they’re going to use; it’s got to be the nearest one.
The law has been tremendously successful: Federal habeas caseloads are down sharply, along with questionable filings.
But there’s no indication that these limitations will apply to detainees at Gitmo. In fact, the decision was either vague or silent about the details of these judicial proceedings going forward. So detainees now get access to our civilian courts but without any of the protections to ensure they don’t exploit the judicial process.
Congress could just patch the system. After all, AEDPA passed the Senate 91 to 8 (with one abstention), and surely its supporters would support similar limitations on habeas petitions by terrorist detainees.
But inaction is more likely. Congress is happy to let the president take the lead — and the heat — on detainee policy.
That’s unfortunate for two reasons: First, Boumediene and the spate of habeas petitions sure to come give the issue a new urgency. And second, seven years into the war on terrorism, there’s finally a serious alternative proposal for how to deal with detainees over the long haul.
The approach is laid out in a new book by Brookings Institution scholar Benjamin Wittes. "Law and the Long War" is sober, realistic and exceptionally well-written. It should be in every congressman’s briefcase.
The debate over detainees, observes Wittes, too often has gotten bogged down in collateral matters, such as where to keep them and habeas review, while missing the heart of the matter: the need for a legitimate system of preventative detention and trial that "stops short of the norms prevailing in American federal courts." He argues persuasively that the law of war — not criminal law — should govern.
Wittes rejects the Bush administration’s preference to treat detainees entirely outside of the civilian justice system — an impossibility, in any case, after Boumediene — but also recognizes that habeas review, traditionally a post-conviction backstop against injustice, isn’t up to the task of handling what essentially are preventative incarcerations.
In calling for a specialized national security court, Wittes highlights the real danger posed by this enemy and the real limitations of regular civilian courts. The finder of fact would be a federal judge, but one who specializes in detainee cases, building up experience and expertise a case at a time. Detainees would have full legal representation by counsel cleared to see the sometime-classified evidence against their clients.
Unlike criminal courts, standards of admissibility of evidence would be slightly relaxed to account for materials that may have been picked up by intelligence or on the battlefield rather than by trained police inspectors, and the government could keep classified materials secure in closed sessions, when necessary.
Crucially, the court would keep jurisdiction over cases for as long as they are open, ensuring periodic review of the necessity of detention and putting an end to judge-shopping.
Despite Wittes’ center-left bona fides, though, the Democratic Congress has shown no interest. Yet by doing nothing after Boumediene, Congress proves itself content to leave the law regarding detainees in disarray and to grant foreign terrorists arguably greater rights in our courts than anyone else in federal custody.
At the very least, Congress should clarify the scope of the rights detainees enjoy under the decision. Here’s how:
1) Clarify that AEDPA’s prohibition against repeat habeas petitions applies to Gitmo cases.
2) Prevent judge-shopping. Require all cases to be filed in the federal district court in Washington, D.C.
3) Make clear that government has to demonstrate a "reasonable suspicion" to detain an unlawful enemy combatant, the same standard police use to detain Americans suspected of crimes.
4) Prevent detainees released by a federal judge from seeking asylum or citizenship in the U.S.
5) Prevent detainees from suing the United States, or its agents, for "unlawful imprisonment."
6) Insist that federal judges hearing challenges from detainees consider the decisions to detain them made by the military’s Combatant Status Review Tribunals.
But even better would be to rethink what we do with those captured in the war on terrorism. This is a long war, after all. A thoughtful Congress must take the long view on detainee policy.
Charles "Cully" D. Stimson, a Senior Legal Fellow at The Heritage Foundation (heritage.org), was the Deputy Assistant Secretary of Defense for Detainee Affairs in 2006-2007. Andrew M. Grossman is a Senior Legal Policy Analyst at Heritage.
Charles "Cully" Stimson is a widely recognized expert in national security, homeland security and crime control. A senior legal fellow at The Heritage Foundation since 2007, Stimson became manager of the National Security Law Program in Heritage's Davis Institute for International Studies in April 2013 after serving as Heritage's chief of staff for a year.