The Senescent Man

Reprint from the WSJ:

Habeas corpus hearings could set terrorists free inside the U.S.

By MICHAEL B. MUKASEY

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.

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.

Labels: Terrorism

// posted by The Senescent Man @ 6:25 PM