No Place to Write Detention Policy

Benjamin Wittes and
Benjamin Wittes Senior Fellow - Governance Studies, Editor-in-Chief - Lawfare

Jack L. Goldsmith
Jack L. Goldsmith Former Brookings Expert, Henry L. Shattuck Professor - Harvard Law School

December 22, 2009

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court’s intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.

Many commentators have complained about this state of affairs and the contradictory and incoherent body of law it is producing and have urged the political branches to enact legislation to create a uniform and democratically legitimate detention policy.

Now a more important voice has joined the call for legislative reform.

Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules — a person with as holistic and in-the-weeds an understanding of the issues as is possible.

Last week, in ruling on the merits of a detainee’s case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that “go to the heart of our judicial system.”

“It is unfortunate,” he 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 has avoided these issues for a number of reasons. Initially, it was a combination of the Bush administration’s failure to seek congressional help and lawmakers’ natural inclination to avoid taking responsibility for hard decisions for which they might later be held accountable. More recently, the Obama administration has been loath to spend any more political capital than necessary in cleaning up what it views as its predecessor’s messes. Instead of dealing with detention policy proactively, it has largely adopted the Bush approach of grinding out detention policy in the courts. Ironically, the president’s political base seems to prefer his adoption of the Bush approach — an approach liberals previously decried — to any effort to write detention rules and limitations into statutory law.

As Judge Hogan made clear, this is a bad way to craft policy. It generates uncertainty about the lawful parameters of detentions, ensures longer adjudication times and lessens accountability for difficult decisions.

The Guantanamo closure process and the appropriations process for the new terrorist detention facility in Illinois offer a perfect opportunity to correct this long-festering problem. The administration will have to work with Congress, if only to permit Obama to move detainees to the new site. Yet if legislation stops there, the political branches can congratulate themselves only on moving the location of terrorist detention and not on strengthening and clarifying detention policy.

By contrast, if Congress and the administration were inclined to perform their constitutional duties, they could draw on eight years of judicial decisions, legal briefs and scholarship to craft clear, stable rules. There are myriad issues for a responsible Congress to address, but at a minimum it should offer a clear definition of who can be detained, a coherent set of evidentiary and procedural rules to determine who fits the definition of an enemy, and guidance concerning the scope of the government’s obligation to disclose evidence to detainees’ lawyers.

The goal, simply put, should be to replace what Judge Hogan called “procedures drawn up by the court, and principally [by] myself . . . in a new venue that has been untested” with one that carries the legislature’s stamp and the president’s signature, and that answers some of the hard policy questions our political institutions have punted to the courts. The courts’ job, in such a world, would be to adjudicate detainee cases, rather than to write conflicting rules that they then have to apply.