June 30, 2008
By Charles "Cully" Stimson and Andrew M. Grossman
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:
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
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
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
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
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
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 --
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
At the very least, Congress should clarify the scope of the
rights detainees enjoy under the decision. Here's how:
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 was
the Deputy Assistant Secretary of Defense for Detainee Affairs in
2006-2007. Andrew M.
Grossman is a Senior Legal Policy Analyst at Heritage.
First appeared on FOXNews.com
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.
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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