This problem is one that only Congress can solve: how to handle appeals by foreigners who are detained indefinitely as enemy combatants by U.S. forces abroad but who claim to be innocent civilians. Despite two new laws over the past 14 months, Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion.
The justices cannot solve this problem without unseemly gymnastics, because current law presents them with two bad alternatives. The first would be to uphold the sharp restrictions on federal judicial review of appeals by militarily detained terrorism suspects that Congress imposed in the October 2006 Military Commissions Act. That's what a sharply divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did on February 20, in Boumediene v. Bush.
But as my December column details, the MCA, even if constitutional, is neither fair to detainees nor credible to world opinion. It is thereby self-defeating, because it makes it harder to get other nations to help us get our hands on bad guys in the first place.
For these reasons the justices may well reverse the D.C. Circuit and strike down the relevant MCA provisions. Such a decision could, if written broadly, give every suspected terrorist captured anywhere in the world a historically unprecedented federal constitutional right to file a habeas corpus petition in federal district court demanding legal representation, release, a ban on interrogation, and/or nicer conditions of confinement. Such an outcome might (or, in these times, might not) satisfy world opinion.
But it might also make it unduly hard to keep bad guys locked up and to get information from them, by inviting disruptive and costly judicial interference in military decisions that most judges are ill-equipped to second-guess. Who would decide, for instance, whether terrorism suspects newly captured abroad, who may know of planned attacks or the location of their confederates, immediately get Miranda warnings and lawyers, who will tell them to answer no questions?
Consider a published boast (in Mother Jones) by Michael Ratner, head of the left-leaning Center for Constitutional Rights, which has coordinated the legal representation of hundreds of detainees at the military's Guantanamo Bay prison camp: "We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation ... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?"
Should detainees, who may end up being released, get access to sensitive national security secrets that are arguably relevant to their cases? Should their lawyers? Should such secrets be aired in public proceedings?
Consider the list of almost 200 unindicted co-conspirators, including the then-obscure Osama bin Laden, that prosecutors in the 1995 trial of 11 subsequently convicted Islamist terrorists were legally required to send to defense counsel. "That list was in downtown Khartoum within 10 days," U.S. District Judge Michael B. Mukasey of Manhattan, who tried the case, recalled in a recent panel discussion. "And he [bin Laden] was aware within 10 days ... that the government was on his trail."
In another judge's case, Mukasey recalled, "there was a piece of innocuous testimony about the delivery of a battery for a cellphone"; this tipped off terrorists to government surveillance "and as a result [their] communication network shut down within days and intelligence was lost to the government forever, intelligence that might have prevented who knows what." Yet another cost of the criminal-justice approach: For 11 years, federal marshals had to provide 24-hour protection to the two judges.
Should a Marine sergeant be pulled out of combat in Afghanistan and flown around the world to testify at a detention hearing about when, where, how, and why he had captured the detainee? What if the Northern Alliance or some other ally made the capture? And should the military be ordered to deliver high-level Qaeda prisoners to be cross-examined by other detainees and their lawyers?
In our criminal-justice system, judges are trained to follow precedents that tilt against the government on such questions. The process is appropriately designed to avoid wrongful convictions in ordinary criminal cases by guaranteeing defendants elaborate procedural protections and full disclosure of all possibly relevant evidence.
But the question whether to detain a suspected foreign terrorist calls for striking different balances. It's one thing to err, when in doubt, on the side of releasing a burglary suspect, or a suspected tax cheat, mobster, or even murderer. It would be something else to err on the side of releasing a man who might then mass-murder dozens, hundreds, or thousands of innocent people, possibly with a chemical, biological, or nuclear weapon.
If our judges were all as good as Mukasey—who spanked the Bush administration in 2003 for its lawless, long-term, incommunicado imprisonment and interrogation of suspected terrorist Jose Padilla—this country might not face much risk of judicial insensitivity to national security concerns.
But some other judges have been so reflexive in applying the criminal-justice mind-set, plus impossibly vague international human-rights standards, as to suggest that review of military detentions and trials should be very tightly constrained by congressionally specified rules and done by experts.
Congress moved in this direction in both the December 2005 Detainee Treatment Act and the October 2006 MCA. But as noted earlier, Congress went too far.
Even Andrew McCarthy, a conservative expert who sees the current process as a good one, admits that it has failed in the "imperative to demonstrate to national and international audiences that it was capable of dealing fairly and expeditiously with alien combatants," partly because of the "poor performance of the executive branch."
McCarthy, who once prosecuted big terrorism cases and is now director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, adds this: "If other nations, unwilling to prosecute and sufficiently punish terrorists themselves, become similarly unwilling to extradite them to the United States due to what they regard as a lack of fundamental fairness and independence in the prospective trial proceedings, it will be cold comfort indeed that those proceedings are perfectly adequate (even exemplary) under our Constitution and laws."
He thinks the best solution is for Congress to create a new National Security Court independent of the executive branch. Other leading experts agree. They include moderate Democrat Neal Katyal, the Georgetown law professor who (much to McCarthy's regret) won the Supreme Court ruling last June that President Bush's military commissions were illegal.
These and other experts disagree on the difficult details. But most agree that the new court should be staffed by already serving federal judges from around the country, to be chosen by the chief justice based on their fitness for the assignment. The judges would take time from their regular duties to review military detentions, plus any war-crimes convictions by the congressionally reconstituted military commissions.
Some see the 29-year-old Foreign Intelligence Surveillance Court as a model. It hears (in secret) requests for warrants to intercept communications from or to search through the possessions of suspected international terrorists and spies. National Security Court judges would become expert in assessing the security costs of requiring various procedural protections for detainees.
"Right now, these cases are heard by different courts, with different defense lawyers and different prosecuting attorneys," Katyal says. "None of them are really repeat players; none of them have the incentive to moderate their claims in order to build credibility. Creating a National Security Court, with repeat-player lawyers and judges, will change the entire dynamic, and help avoid the excessive rhetoric that has characterized both sides in the war on terror. It would also send a signal to the world that we have a serious process in place, one that we would feel comfortable applying to our own citizens."
Many libertarians and human-rights activists, on the other hand, would settle for nothing less than the full panoply of protections afforded to ordinary criminal defendants. They should be careful what they wish for. As McCarthy points out:
"Enemy combatants are often in a position to be killed or captured. Capturing them is the more merciful option, and making it more difficult or costly would almost certainly effect an increase in the number killed."