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?