We Don’t Need No Legislation

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted from Huffington Post.

Benjamin Wittes has been arguing for years now that Congress needs to codify the U.S. government’s right to imprison terror suspects indefinitely without trial. So it’s hardly surprising that his newly-released study issued by the Brookings Institution and highlighted on National Public Radio this morning concludes that we need just that.

But an objective look at the rulings that courts have been issuing on the government’s indefinite detention rights over the last two years reveals exactly the opposite: that the courts are perfectly capable of deciding under what conditions the U.S. can, and cannot, hold “enemy combatants” – what the Obama administration now calls “unlawful enemy belligerents” – in indefinite detention.

Given this morning’s news that a Department of Justice Task Force recommends continuing to hold about 50 current Guantanamo detainees indefinitely, the question of whether new legislation is needed is likely to gain more urgency.

Contrary to the claims of Wittes, a Brookings Institution fellow, and his co-author Robert Chesney of the University of Texas Law School, judges are not “playing the role of the legislature,” as Wittes told Ari Shapiro of NPR. Rather, they are doing their jobs – interpreting the law. That judges disagree on some particular interpretations of the law in different cases is hardly unusual; after all, if everyone read the laws the same way, we wouldn’t need judges. What’s more, the main point of disagreement between the government and the detainees in these cases is not over the legal standard for detention; it’s over whether the government has had enough credible evidence to justify holding these suspects indefinitely without charge. These are issues that only judges, not legislators, can resolve. In the vast majority of cases — 32 of 41 cases decided so far — federal judges, including many conservatives appointed by President George W. Bush, have found that the government has failed to meet that burden.

A review of the 42 cases decided since the Supreme Court ruled in 2008 that detainees have a right to challenge their detention in federal court reveals that while there are some minor differences in the legal standards judges have agreed upon, every judge has agreed that the government has the right under existing laws of war to hold “enemy combatants” or “unlawful enemy belligerents” in indefinite detention until hostilities cease.

Although there have been disagreements among judges over what constitutes a “belligerent” – whether he must be “part of” the Taliban or al Qaeda or “substantially supported” them – that has not been the reason the government has lost most of these cases. Indeed, the latest court of appeals decision, issued early this month, now governs all of the pending habeas cases and adopts a detention standard that’s even broader than what the Obama administration has asked for. In Al-Bihani v. Obama, the D.C. Circuit Court essentially accepted the Bush administration’s definition of broad detention authority.

The matter may end up being decided by the Supreme Court. But then, that’s what the Supreme Court is for. As Appeal for Justice Executive Director David Remes said on NPR this morning, “The fact that there’s variety or variation in the trial courts is commonplace.” Courts of appeals and the S.Ct. are there to make the ultimate ruling on what the law is. And given the Supreme Court’s previous decisions in detention cases, the ultimate decision will likely uphold powers of detention sought by the government.

Inviting Congress to step into the fray risks injecting politics and posturing into what ought to be a legal determination, as lawmakers scramble to look tough on terror regardless of whether their proposals to lock people up indefinitely comport with what the Constitution, and sound policy, requires. Particularly if those people turn out to be mostly Muslims, such legislation also threatens to inflame animosity against the United States and provide yet more powerful arguments for terrorist recruiters.

In any event, the Wittes-Chesney proposal will not provide the legal certainty that its authors say they’re after. Courts will still be making decisions on individual cases. And any new legislation that codifies the U.S. right to imprison suspects indefinitely without charge or trial is sure to face the same sorts of legal challenges already making their way through the courts in the habeas corpus cases right now. The result will be to delay legal certainty even longer. And in the end, the matter will likely ended up being decided in exactly the same way, which is how our system of checks and balances intends for such difficult constitutional questions to be decided: by the U.S. Supreme Court.