‘We don’t have to pass anything,” smirked Jerrold Nadler to Newsweek. “Let the courts deal with it.”
The key House Democrat seems ever ready to lend a terrorist a helping hand. Just ask Susan Rosenberg, the Weather Underground bomber he helped convince Bill Clinton to commute her 60-year sentence. But now it’s our troops — who Democrats are forever saying they “support” — who need a helping hand. So here was Nadler, giving his usual thumbs-down to a Justice Department plea that Congress provide them, and the nation, with something other than the usual empty words.
The plea came on Monday. Attorney General Michael Mukasey gave a major speech at the American Enterprise Institute. It was a thoughtful request that our lawmakers do their job in the wake of last month’s catastrophic Supreme Court ruling that granted alien enemy combatants a constitutional right to habeas corpus (i.e., to civilian federal court review of the military decision to detain them).
Justice Anthony Kennedy’s imperious majority opinion in Boumediene v. Bush ran roughshod over carefully crafted legislation by which Congress had balanced wartime security and due process. Such balancing, of course, is the legislature’s job. Yet, like Nadler, five of our esteemed justices — despite having asked Congress to pass the very laws they’ve just invalidated — decided the job is better done by politically unaccountable courts … the better to spare Nadler and his cohort from telling voters exactly what protections they’d lavish on the people trying to kill us.
The attorney general begs to differ. The justices ruled that detainees get judicial review, but, as he posits, they “stopped well short of detailing how the habeas corpus proceedings must be conducted.” Many significant questions remain open, and, Mukasey rightly insists, “it is well within the historic role and competence of Congress and the executive branch to attempt to resolve them.”
LAYING DOWN MARKERS
The Justice Department has to live with the chaos caused by Boumediene’s dumping of approximately 270 combatants on the district courts with no guidance about how the cases should be handled. Fans of Kennedy & Co. laughably point to this as a demonstration of the high Court’s restraint. But it is, in Justice Antonin Scalia’s apt dissenting phrase, “a pose of faux deference.”
The lack of guidance owes exactly to the majority’s breathtaking arrogance: gutting laws in which Congress had exercised its constitutional prerogative to remove the district courts from the consideration of detainee claims. Those laws, the attorney general noted, “gave more procedural protections than the United States — or any other country, for that matter — had ever before given to wartime captives, whether those captives were lawful soldiers in foreign armies, or unlawful combatants who target civilians and hide in civilian populations.”
In an effort to control the damage, Mukasey laid down several important markers. Boumediene, he stressed, does not call into question the government’s power to detain enemy combatants. The ruling is strictly about process: The courts have carved out for themselves a role in scrutinizing the lawfulness of each individual detention, and what remains is to prescribe rules for those hearings.
Boumediene, moreover, dealt only with combatant detention. The military-commission trial system endorsed by Congress for combatant trials remains unchanged. For the moment, at least, the federal courts have accepted this distinction drawn by the AG. That is why the first commission war-crimes trial (against Osama bin Laden’s confidant Salim Hamdan) is currently proceeding at Guantanamo Bay.
More debatable, though, is Mukasey’s laudable effort to confine Boumediene’s reach to Guantanamo Bay, rather than anywhere in the world where the United States detains prisoners. The Justice Department theorizes that it is the naval base’s unique circumstances (e.g., the in-perpetuity lease giving the U.S. exclusive control, though not sovereignty) which caused the Supreme Court to rationalize that it had jurisdiction to intervene.
It’s a plausible reading, but Justice Kennedy’s tropes convey a sweeping judicial usurpation. They reject the concept that court jurisdiction is limited to sovereign American territory. Kennedy’s analysis frets not just over captives at Gitmo but all detainees “abroad.” And his talismanic chanting of “separation-of-powers” — which now apparently means no powers are ever separate from judicial oversight — scarcely conceals the liberal bloc’s insatiable appetite. Kennedy’s parting shot is a haughty new doctrine: What “vindicate[s]” executive powers, even in the formerly political sphere of foreign affairs, is “confirm[ation] by the judicial branch” (formerly known as the non-political branch).
This all matters because the attorney general is proposing that Congress impose order on the Boumediene chaos by assuming its rightful place as the architect of court procedures. The Supreme Court’s muscle flexing cautions us that any congressional action will ultimately be examined by the very same justices. Still, the Boumediene majority has invited legislation, and Mukasey is right to capitalize on that fact. The justices took pains to caveat that detention hearings need not resemble full-blown criminal trials; “to emphasize,” the AG put it, “that ‘practical considerations and exigent circumstances’ must help define the substance and the reach of these habeas corpus proceedings”; and to concede that “certain accommodations must be made ‘to reduce the burden habeas corpus proceedings will place on the military’ and to ‘protect sources and methods of intelligence gathering.’”
We shouldn’t delude ourselves: The same five justices made just such high-minded overtures before (in the 2006 Hamdan case). Justice Scalia tartly notes that it “[t]urns out they were kidding.” Are they kidding this time too? Maybe.
But for now we have to hold them to their word. Otherwise, our troops stand to be doubly endangered by Boumediene: First when it results in the release of enemy operatives who return to the jihad, and next when judges — absent congressional guidance — inevitably ratchet up due-process mandates, to the point that combat soldiers are forced to perform police duties. With these precious lives hanging in the balance, Congress has a solemn duty to go back to the drawing board.
Mukasey, formerly a renowned federal judge, explained why. “Congress and the Executive Branch are affirmatively charged by our Constitution with protecting national security, are expert in such matters, and are in the best position to weigh the difficult policy choices that are posed by these issues.” By contrast, judges “are limited to the evidence and the legal arguments presented in [particular] cases. They have no independent way, or indeed authority, to find facts on their own, and they are generally limited by the parties’ presentations of background information and expert testimony.” Inevitably, “without guidance from the Congress, different judges even on the same court will disagree about how the difficult questions left open by Boumediene should be answered.” In matters of such grave consequence, such uncertainty is unacceptable, especially when the legislature has the power to prevent it from happening.
A MODEST CALL FOR HELP
The attorney general made six modest suggestions. It comes as no surprise that the hopeless Nadler would shrug them off with a peremptory “Let the courts deal with it.” One would hope, though, that enough adults remain in the Democrat-controlled Congress to give them prompt and respectful consideration while American lives are at risk.
First, in what he regarded as his “most important” proposal, Mukasey called on Congress to “make clear that a federal court may not order the Government to bring enemy combatants into the United States.” It is one thing to say that a judge is empowered to hear a detainee’s challenge and even reverse the military’s determination that the detainee is an enemy combatant. It is quite another to say the detainee needs to be brought into our country for court proceedings. Much less released here. Mukasey put it starkly: “[M]any of [the remaining detainees] pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans.”
Second, the AG asked Congress to ensure that national-defense secrets, as well as our methods and sources of intelligence, are not compromised. In Boumediene, notable in Chief Justice John Roberts’s dissent was his critique of the majority for acknowledging this “vexing question” only to “fob [it] off on district courts to answer down the road.” (What, Roberts asked rhetorically, did the majority think should be done: “Allow free access to classified information and ignore the risk the prisoner may eventually convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee?”)
Third, Mukasey underscored, again, that combatant detention was critically distinct from combatant war-crimes trials. He urged Congress to reaffirm that civilian court review must await the conclusion of military commission trials.
Fourth, he wisely asked Congress to reiterate the assertions in its 2001 authorization of military force, adding the gloss of a crucial principle reaffirmed by the Supreme Court since 2004. That is, restate that we are engaged in an armed conflict with al-Qaeda, the Taliban and related affiliates dedicated to killing Americans, and declare that “for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported” our enemies.
Fifth, he beseeched our lawmakers to do their jobs and make laws. Specifically, we need “sensible procedures for habeas challenges going forward.” These would include assigning cases to a single court and recurrent issues to a single judge. Those simple measures would avoid duplication and inconsistent rulings. (The Boumediene majority made a similar suggestion.)
More importantly, Congress should also write procedural rules that reasonably balance “the detainees’ rights to a fair hearing” with “our national security needs and the realities of wartime detention.” This means ensuring:
‐ that alien enemy combatants do not receive “greater protection than we would provide to American citizens held as enemy combatants” (in the 2004 Hamdi case, the Supreme Court indicated that wartime detention hearings even for American combatants should be deferential to the executive branch);
‐ that our soldiers are not “required to leave the front lines to testify as witnesses” (Mukasey suggested that “affidavits prepared after battlefield activities have ceased” would suffice);
‐ that we don’t turn this war into “CSI Kandahar” with soldiers risking their lives to create arrest reports and a pristine chain-of-custody for handling evidence — “Battlefields,” the AG stressed, “are not an environment where [law-enforcement] reports can be generated without substantial risk to American lives”; and
‐ that combatant habeas proceedings are not transformed into “full-dress trials” — Congress has not permitted that in civilian criminal cases, and, in Boumediene, even the majority observed both that “[h]abeas corpus proceedings need not resemble a criminal trial” and that combatant court review need not provide all the protections Congress has prescribed for civilians seeking habeas in the criminal-justice system.
Sixth, Mukasey asked Congress to fix the unintended windfall Boumediene gave the detainees by adding a new right of review to the more limited right Congress had already provided. The latter should now be eliminated.
Despite all the libel of Gitmo as a round-up of innocents stashed in a Kafkaesque “legal black hole,” the attorney general recounted that only about a third of the original 775 detainees actually remain at the base. To suggest, as critics do, that these must either be released or charged criminally in civilian court is, Mukasey said, “to seriously misunderstand the principal reasons why we detain enemy combatants in the first place: it has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers.”
Congressman Nadler apparently doesn’t think that’s a good enough reason for him and his colleagues to bestir themselves. Americans are likely to disagree.
— National Review’s Andrew C. McCarthy chairs FDD’s Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad.