Sometimes it seems that upon taking the oath of office as a judge, people we might have expected to be perfectly sensible begin to assume that any and all interesting questions confronted by the American republic ought to be referred to their expertise, armed as they are with the inexhaustible toolkit of the U.S. Constitution–or of an imaginative approach to it. It doesn’t happen to all of them, but it does to far too many.
At least this was the thought that occurred to me as I read this New York Times op-ed today by semi-retired federal district court judge John C. Coughenour. Taking issue with an August Wall Street Journal piece by Michael B. Mukasey (not yet at that time the nominee for Attorney General), he argues that the lone case of Ahmed Ressam in 2001, over which Coughenour presided, “demonstrates that our courts can protect Americans from terrorism.” I don’t think Coughenour’s argument is an effective rebuttal of Mukasey’s views at all, but I’ll let readers see for themselves, and maybe Andy McCarthy would like to weigh in on that dispute as a general matter.
I was more immediately struck, however, by this paragraph in Coughenour’s piece:
Consider the fact that of the 598 people initially detained at Guantánamo Bay in 2002, 267 have been released. It is likely that for a number of the former detainees, there was simply no basis for detention. The American ideal of a just legal system is inconsistent with holding “suspects” for years without trial.
This is simply a categorical confusion on Coughenour’s part, albeit one that is increasingly common among American lawyers and judges. The “suspects” at Guantanamo are wartime captives–the term “prisoners of war” would be appropriate if they deserved that honorable status, which they don’t. Their detention in military custody has nothing whatever to do with “the American ideal of a just legal system” such as we would expect to be brought into play for civilian criminal suspects arrested by law enforcement authorities. It has to do with achieving the objective of winning a war. Flapdoodle about the Bill of Rights and the employment of federal courts in adjudicating the niceties of warfighting is simply out of place.
Policemen in American communities are not generally under orders to sweep an area clean of all persons plausibly suspected of being “enemies” and holding them until the innocuous can be sorted from the dangerous, meanwhile subjecting them to interrogation without legal counsel to aid in that sorting (among other purposes). We would rightly be alarmed if our policemen behaved this way. But this is just what soldiers in wartime have to do, routinely–and especially in this war, where the enemy are terrorists who have no respect for the laws of war.
Coughenour cites 267 releases from Guantanamo, but he professedly does not know in how many instances “there was simply no basis for detention.” Neither do I. He appears not to know anything about the pace of the releases–how long each released detainee had been held. Neither do I. But Coughenour is content to insinuate that most or all of them were held for “years without trial.”
Unlike Coughenour, I am willing to believe that the military has no interest in holding any Gitmo detainee one day beyond what military necessity dictates, and none at all in holding people swept up in dragnets by mistake. I’m also pretty sure that some detainees who could and perhaps should have remained in lockup have been let go–maybe even a greater number than those released after having been detained unjustifiably.
And the last thing, of which Coughenour makes me even more certain, is that I don’t want federal judges coming anywhere near the business of deciding who stays and who goes at Guantanamo. I have high hopes but low expectations that at least five Supreme Court justices will agree with me in the pending case of Boumediane v. Bush.