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November 13, 2008
Exclusive: Guantanamo Detainee Proceedings: Obama’s Challenge
One of the most urgent national security issues facing President-elect Obama concerns Guantanamo Bay detainees. He and Congress must enact rules to govern suits brought by enemy combatants challenging their detention. In the ground-breaking case, Boumediene v. Bush, the Supreme Court ruled that detainees held at Guantanamo could file habeas petitions in our courts to contest their detention. This decision puts the executive branch on a collision course with the judicial branch. In these proceedings, the executive branch – drawing on the expertise and classified intelligence of the Department of Defense, the CIA, and the National Security Agency — can be expected to argue that each detainee poses a dangerous threat to our national security; but if a federal district judge — with no particular national security expertise – disagrees, he can set the detainee free. What is worse, there are currently no laws governing these proceedings.
Although President-elect Obama intends to close the Guantanamo detention center, the issue of detainee habeas proceedings will remain vital during his presidency. First, the holding of Boumediene likely reaches beyond Guantanamo because it almost certainly will apply to detainees held in the United States, and may even apply to detainees held at other U.S. military bases abroad. Second, closing Guantanamo responsibly could take months, if not years, and Obama has wisely declined to set a timetable for closure. Even the New York Times has discovered the significant obstacles to shutting the facility. After years of condemning the Bush Administration’s detention policies, the Times backtracked the day before Obama was projected to win the Presidency, and warned that the “next president will have to contend with sobering intelligence claims against many of the remaining detainees." The Times acknowledged that Guantanamo houses several of our fiercest enemies, including sixteen who are accused of “some of the most significant terrorist attacks in the last decade.” Among these are the attacks of September 11th, the attack on the USS Cole in Yemen in 2000, and the 1998 bombings at the American Embassies in Kenya and Tanzania. One detainee even boasted, “I admit to you it is my honor to be an enemy of the United States.”
The Boumediene decision opens the door to federal judges to release these dangerous individuals. Moreover, there are no laws for how these proceedings should be conducted. In other words, the judicial branch is left to handle this crucial anti-terrorism challenge. Now, federal judges – who with life tenure are not politically accountable to U.S. citizens – may make up rules on an ad hoc basis regarding these vital anti-terror proceedings. (Last week a D.C. district court judge set forth guidelines for conducting detainee habeas proceedings, but each judge is at his discretion to alter the framework). Since the judicial branch has no specific national security expertise, there is no guaranteeing that those rules will be optimal for our nation’s safety.
It is emphatically not the role of the judicial branch to handle such critical national security matters. Permitting judges to decide these crucial anti-terrorism issues can undermine the will of the people. The Constitution expressly instructs that foreign and national security policy should be conducted by the executive and legislative branches, through such provisions as the Treaty Clause, the Declare War Clause, the Foreign Commerce Clause and the Commander-in-Chief Clause. And, it is with good reason. Our founders understood that national security is one of the most fundamental concerns facing the electorate, and therefore wanted national security decisions to be determined by the will of the people, through the two elected branches – not the politically insulated judicial branch.
Therefore, Congress and the President have a duty to enact rules to govern these Guantanamo detainee proceedings. In fact, after the Supreme Court issued the Boumediene decision, Attorney General Michael Mukasey asked Congress to pass such legislation. Moreover, the chief judge of the court handling these habeas petitions asked Congress for “guidance sooner rather than later.” But the response of the Chairman of the Senate Judiciary Committee, Democrat Sen. Patrick Leahy, was to throw up his hands: he said in an election year, "I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed." Though the issue may be “complex,” this is no excuse for the Senate to avoid its obligations. Sen. Lindsey Graham and Sen. Joe Lieberman, on the other hand, understand that Congress has a duty to act on this matter. They introduced a bipartisan bill on Guantanamo detainee proceedings, which was referred to the Judiciary Committee on July 31. Their bill is an excellent start and contains many of the safeguards needed to protect our nation. Unfortunately, the bill seems to have been stalled in the Judiciary Committee for the past three-and-a-half months. Perhaps President-elect Obama will have better luck than Attorney General Mukasey in urging the Senate Judiciary Committee to do its job to protect the American people.
As an initial matter, the Congress should approach such legislation with an understanding that the process due to alien enemies may be quite different from the process due to U.S. citizens in a criminal prosecution. Supreme Court Justice O’Connor explained in US v. Hamdi, a case concerning a U.S. citizen held in the United States (who presumably would have more due process rights than an alien held at Guantanamo), that while a detained person must have a fair opportunity to challenge his detention, “enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” Justice O’Connor explained that an alleged enemy combatant is entitled to significantly less evidentiary protections than a criminal defendant.
With that in mind, there are at least three provisions that the rules should include that would protect our country. First, it is vital that our troops on the battlefield not be hauled into court by enemy combatants. Forcing our men and women in the armed services out of the combat zone and into a web of litigation could be damaging to our efforts in Iraq and Afghanistan. Therefore, the rules could instruct that military personnel generally do not have to appear as witnesses in these proceedings. The Graham/Lieberman bill addresses this issue by providing that military witnesses could submit affidavits in lieu of live testimony. In addition, it allows hearsay evidence (i.e. second-hand statements) concerning these witnesses’ reports. This is consistent with Hamdi, in which the Supreme Court specifically said that Government hearsay may be admissible in enemy combatant proceedings.
Second, classified information – including both sources and technologies for conducting terrorist surveillance – must be protected from falling into the hands of enemy combatants. Our enemies have shown that they are adept at using modern technology to advance their sinister goals while they try to evade our surveillance systems. Meanwhile, our intelligence agencies continually work to stay one step ahead of our enemies. It is critical that our means of gathering intelligence do not fall into the hands of terrorists. Rules governing habeas proceedings should provide, as the Graham/Lieberman bill does, that all relevant classified information may be submitted to the judge in his chambers ex parte, with non-classified summaries provided to the detainee.
Third, enemy combatants must not be permitted to enter our borders to appear at habeas proceedings. As an initial matter, Attorney General Mukasey warned of the “extraordinary” security effort required to transport a detainee to the U.S. Even more important, allowing these enemies to enter our homeland may endanger our safety – particularly if a judge saw fit to release a detainee within our borders. One judge has already ordered that 17 detainees from Guantanamo be brought to the United States where he said he planned to free them into our Nation’s Capital. They have not been released yet only because the issue is currently on appeal. The Graham/Lieberman bill provides that a detainee may attend the habeas proceeding and take the stand only via video link from Guantanamo. In addition, the rules could set up procedures for releasing detainees outside of the United States.
Enacting such legislation is urgent. Just one judge in one proceeding could cause irreparable harm to the United States if he mismanaged classified information or released an alleged terrorist into our borders. The American people have trusted President-elect Obama with their national security. He can show impressive national security initiative by taking action on this vital anti-terrorism challenge.
FamilySecurityMatters.org Contributing Editor Stephanie Hessler is a former Counsel for the Constitution for the Senate Judiciary Committee.
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