A Plea to Congress: Do Your Job by Crafting Rules for Combatant Detention Cases

by Andrew C. McCarthy

I jousted with Jack Goldsmith over the Obama administration’s decision to grant KSM and the other 9/11 plotters a civilian trial, so let me be the first to commend Jack, and the equally thoughtful Benjamin Wittes, for their superb op-ed in the Washington Post today. Jack and Ben call on Congress to do what it should have done years ago: prescribe rules of procedure for the hundreds of combatant detention cases dumped on the federal district courts by the Supreme Court’s Boumediene decision last term.

I’ve made that plea a number of times (see, e.g., here and here), and Attorney General Michael Mukasey exhorted Congress to act in Boumediene’s immediate aftermath. Now, as Goldsmith and Wittes explain, the highly respected Judge Thomas Hogan of the U.S. district court in Washington, D.C. — who is not only handling detainee litigation but has been tasked with managing the common issues that arise in all the cases — has called urgently on Congress to do its job rather than allow unelected judges to make up the rules as they go along As Goldsmith and Wittes elaborate:

“It is unfortunate,” [Judge Hogan] said in an oral opinion from the bench, “that the Legislative Branch of our government and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases.” While allowing that the various judges were “working very hard and in good faith,” he lamented that “we have different rules and procedures being used by the judges,” as well as “different rules of evidence” and “a difference in substantive law.” For Judge Hogan, it all “highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned.”

Congress prescribes the rules for civilian criminal cases. We don’t allow judges to make up the rules even though, in civilian criminal justice, we have juries as a check on judicial excess. Why would we allow judges unilateral control — to make up and apply rules ad hoc — in non-jury proceedings involving the conduct of war, an area committed by the Constitution to the political branches, an area in which judges have no institutional competence?

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