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Judges Urge Congress to Act on Indefinite Terrorism Detentions
Three judges on the federal trial court hearing challenges brought by Guantanamo prisoners are calling on Congress and the Obama administration to enact a law to address one of the nation's most perplexing moral and legal dilemmas: When can the United States indefinitely detain terrorism suspects?
In lengthy interviews, Chief Judge Royce Lamberth and two of his colleagues on the U.S. District Court in Washington, D.C., said that deciding whether to release these prisoners raises unprecedented questions about security and liberty that need to be addressed by lawmakers. Their willingness to discuss their concerns in detail -- something federal judges rarely do in cases pending before them -- underscores the seriousness with which they view the lack of guidance from lawmakers.
"Judges aren't in the business of making law -- we interpret law," said Judge Reggie Walton, a George W. Bush appointee. "It should be Congress that decides a policy such as this that has a monumental impact on our society and makes a monumental impression on the world community."
Lamberth, a Reagan appointee, said the judges are struggling "to adapt legal principles to a whole new sphere of human existence that we've never witnessed in history as far as I know." The problem, he and the other judges say, is that the battle against terrorist groups doesn't fit the classic definition of war, with clearly defined enemies who would be released when the conflict was settled. Because U.S. law doesn't currently have any other option for captives held in a conflict without end, terrorism detainees could be locked up for life, the judges say.
The judges also say the risk in ordering a detainee to be released seems much greater than in past conflicts, because a return to the battlefield is not just a return to traditional frontlines but to possible attacks on civilians.
"How confident can I be that if I make the wrong choice that he won't be the one that blows up the Washington Monument or the Capitol?" Lamberth said.
Neither the Obama administration nor Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., whose support would be crucial to passing such a law, responded to requests for comment on the judges' plea. A Leahy aide indicated that congressional Democrats won't act unless the White House does. "The administration has not yet offered a proposal for a system of prolonged detention," the aide said.
The judges' position drew support from South Carolina Sen. Lindsey Graham, a Republican member of the Judiciary and Armed Services committees who said he'll introduce legislation in the spring to create a legal framework for terrorism detention.
"Our country needs to get a grip on this," said Graham, who for six years was an Air Force lawyer, advising pilots on the law of war during the first Gulf War. "The courts, God bless 'em, are trying to figure out questions that are outside of their lane."
The judges have been working on the Guantanamo cases since 2008, when the Supreme Court ruled that the detainees could contest their detention under the constitutional doctrine of habeas corpus, which protects individuals from unlawful imprisonment by the government. Their task: Determine if the government had enough evidence that a prisoner was involved in al-Qaida or Taliban-linked hostilities to validly detain him as an enemy fighter.
Without any laws or legal precedent to guide them, the judges have had to piece together their own standards for everything from what kinds of conduct constitute enemy activity to how to evaluate evidence obtained from harsh interrogations. Individually they've drawn on general principles of law and one another's work to come up with methods they believe are fair. But the judges say they want central guidelines to answer the many difficult questions these cases can raise, such as how to evaluate the unusual intelligence and interrogation evidence involved and how certain they should be of the truth before delivering a judgment.
"It's an honor to have the responsibility of blazing the trail in determining how justice should be administered in these cases," said Judge Ricardo Urbina, a Clinton appointee. "By the same token it's also at times frustrating when not all the rules are clear and not all the specifics of how a matter should be dealt with are before us."
A major appeals court decision this month gave the lower court some guidance, Judge Lamberth said, but -- as the decision's author herself wrote -- many critical questions about how to evaluate the detentions still demand an answer from Congress.
So far judges have decided 41 of the challenges [1] brought by some 200 detainees and have determined that 32 of the men should be released. Only 21 of those prisoners have actually left Guantanamo, however, because the Obama administration, like its predecessor, is resisting the courts' authority to compel their release -- a dispute that's now before the Supreme Court.
Lamberth said one challenge the judges are struggling with is the prospect of keeping someone in prison for life based on far less evidence than the "beyond a reasonable doubt" proof that is required in ordinary criminal cases. Currently prisoners can be held at Guantanamo based solely on secondhand or even thirdhand reports of their hostile activity, and they don't have the right to challenge the government's informants in court.
"If they meet the definition of enemy combatant, then under our traditional legal authority they're held for the duration of hostilities," Lamberth said. But "how long will the duration of hostilities here last? I don't know, and I don't think anybody on the face of the earth knows. So it makes it difficult for a legal judgment, and I think better suited for a legislative judgment about what other kinds of options might be available."
Graham wants Congress to step in and lift the specter of indefiniteness from the judges' decisions by establishing a process that allows detainees who lose in court to periodically have their cases reviewed.
"Congress should weigh in so that a person is not without a legal remedy forever. That's unacceptable. The detainee should know, the American people should know -- what happens next?" he said.
Graham said legislation should also create clear steps for addressing the greatest fear in these cases: The possibility that someone who is ordered to be released will commit an atrocity.
The judges are duty-bound to set aside such worries because they are allowed to focus only on the facts of the case before them -- the prisoner's activities at the time he was captured, which in these cases was as long as eight years ago.
"I'm sure all of us are concerned about the problem of international terrorism, and all of us were affected one way or the other by the various terrorist acts. But when you have an individual [before you], you can't factor those considerations," Walton said.
The public doesn't always understand the limitations of the judges' role, Urbina said.
He said he was reminded of that not long after he issued one of the most publicized rulings in the Guantanamo cases, deciding that a group of Chinese Muslims, known as Uighurs, should be released into the United States.
He said he was pulled aside at his high school reunion by a "terrifically nice, very successful lawyer."
"What are you doing? These people are terrorists!" Urbina said the lawyer told him. "You want to bring them here, to blow up our cities and our homes and put us all at risk?"
Urbina said he tried to explain that he had looked at the evidence and had done what justice required. "Have you read anything about these people?" he asked the lawyer, "These are people who the government says are not terrorists."
If Congress doesn't pass a comprehensive detention law, Urbina said, the judges will continue answering the detention questions on their own. Armed with almost no precedent and only the Constitution, "we must turn to our common sense, our sense of reasonableness, our overall sense of what the law is created to achieve, and our own kind of visceral understanding of what's fair and what isn't."
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26 Comments so far
Show AllDon't these Federal Judges know about the basic concepts of law that are known to mere citizens:
1. Innocent until proven guilty.
2. The punishment should fit the crime.
3. The right to a speedy and fair trial.
or are they swallowing the Bush doctrine that these detainees are not criminals nor are they prisoners of war but some novel category of "illegal combatants". Simple by being labelled "illegal" under this definition it would seem is then sufficient to incarcerate them for life...unless it can be shown that they are not illegal combatants.
when interviewed by David Frost, junior referred to them as "illegal NON-combatants".
20 Nov 2003 ... Now they are "illegal non-combatants." From the White House transcript ... These are illegal noncombatants, picked up off of a battlefield. ...
www.talkleft.com/story/2003/11/20/063/65905
Congress? Damn-- why not just wrap each detainee in chains, toss 'em in the ocean, and see if they float?
· Yr Obd't Servant
So now we are down to only fifty men in the Iron Mask? Positively Medieval!
"If they meet the definition of enemy combatant, then under our traditional legal authority they're held for the duration of hostilities," Lamberth said
eeeer, isn't the "definition" of "enemy combatant", whatever Obama or the next president says it is? (Bush made it up out of thin air, remember?) Obama, like Bush, claims to have the unilateral ability to slap anyone in prison, torture them to death if he so wishes.
So, these judges, who are feeling a little squeamish about having allowed Bush and Obama to stay out of jail and commit these war crimes over a period of years, now want the same political "immunity" that the telecoms got when they spied on you,
they want the "get out of jail card" that Cheney's assistant got for outing Valerie Plane,
they want the "John Yoo torture definition" that exonerated the torturers,..
They don't want to be left holding the bag, for people to (rightly) say: "hey isn't it your job to uphold the law?"
Where does it say in the constitution or in a law that you need congress to make new laws that justify your looking the other was as innocent people rot in jail, are tortured, are murdered by your government?
what is not needed are any new laws.
the existing laws need to be enforced.
try the war criminals.
What happened to the U.S. Constitution? That's what judges used to consider to be the "central guidelines."
But I guess the problem with the Constitution is that you can't use it to justify locking people up forever based on secret (probably bogus) evidence and torture.
These quisling judges are worried about the damage that a detainee MIGHT do after being tortured for years by the U.S. It would make more sense to worry about the damage that WILL be done by some of the millions of enemies we are creating all over the world. They don't hate our "freedoms," they hate our hypocrisy and cruelty.
There are two potentially good things about the federal judges asking Congress to take up the issue of indefinite detention of "enemy combatants" in the global war on terror, and Senator Lindsey Graham's promise to introduce legislation on the issue of indefinite detention this spring:
1. If Graham and the GOP put down in black and white a bill to effectively abolish meaningful resort to the historic right of habeas corpus, it can be voted down. Our elected representatives will be forced to stand up for the Bill of Rights, or stand up and publicly articulate their reasons for abandoning the nation's fundamental values and committment to the rule of law. Citizens will learn first hand which politicians they can trust, and who they can't.
If the indefinite detention measure then fails, the federal courts will have been sent a signal that they should continue to apply existing constitutional safeguards and remedies.
If some wretched measure passes, then we will know who to target and vote out of office, regardless of party affiliation.
2. Graham's proposal will of course ignite a firestorm of right wing fear mongering, partisan posturing, and xenophobic demagoguery. Congressional Committee hearings on an indefinite detention bill however can also create a forum for some essential truths about the existing GWOT detainee gulag to emerge into the public domain. Whistleblowers can step forward. Jingoism can be countered with facts, candid discussion of how international terrorism can best be deterred, and with appeals to the nation's common sense and common sense of justice.
Remember, the Bush/Cheney regime created this shameful human rights mess behind a veil of national security secrecy, without public debate nor serious legislative deliberations. On balance, the lower federal courts and a thin majority on the US Supreme Court have done a pretty good job to date responding, and have usually upheld the Constitution's core principles despite sweeping claims of unfettered executive branch powers that were advanced by Federalist Society-type neocon legal ideologues.
Finally getting Congress into the act (warts and all) will not be a pretty spectacle, but it is not necessarily all bad.
Bill from Saginaw
Problem with your scenario is that the vast majority of Americans are too stupid and too ignorant to care. They got Sex and the City and other rot to pay attention to. And now with campaign finance restrictions out the window, they gulp down all the lies that the ruling corps will have to say about anything and everything to keep them dull witted and blind.
"Judges aren't in the business of making law -- we interpret law," said Judge Reggie Walton, a George W. Bush appointee. "It should be Congress that decides a policy such as this that has a monumental impact on our society and makes a monumental impression on the world community."
Please explain why and show me the law that states that corporations are persons. As you know there is no such law. It was SCOTUS that made corporations persons and did so illegally.
Also Reggie with elections law written in the constitution of the US including what is to be done if a president running for office is tied or the out come is not determined what legally is to happen. How is it that the SCOTUS decided the 2000 election?
By your own words you have pointed out the failure to follow the law and the constitution that you judges swear to uphold. Why are you not asking for action to clean out those who voted directly against the US constitution and other US law and who sit on the Supreme Court.
Oh that's right the rule of law is dead and we are now ruled by the rich and the corporations. Just throw out that "piece of paper" the constitution and do what you want. Spineless crap, go hide in your black dress. Without the rule of law you have no power over any US citizen in your court of law which is not about law but about political repression and fear that you will send us to the Gulag.
perhaps I can help the learned judges. the people we are talking about have been held illegally without charges of any kind, some of them for 8 years. we need not refer to bush's blather about enemy combatants. His big three among them, the ones he wanted to put on his moscow show trials for, were 2 children and one taxi driver. there was no evidence against any of them. and since these were the worst of the worst of the worst, the judges need not fear.
The McClatchy Newspapers reported on April 29, 2007:: "The United States announced last month that it's released 390 people from Guantanamo, more than the 386 it continues to hold there.Please Notice that the word "people" rather than "enemy or illegal, combatants" was used when announcing the release of prisoners at Guantanamo.The label the government gave Rafil Dhafir for violating the economic sanctions to help the destitute Iraqis and giving him 22 years (which might as well be indefinite detention since he was pushing 60 years old) was National Security Concern. None of the people, who violated the economic sanctions to make profit, in the Oil For Food scandal, were judged to be a national security concern. Evidently none of the people released from Guantanamo were a National Security Concern. Who determined that??? McClatchy continued to report that "there's little comprehensive information on what's become of those who've been released. Pentagon officials have reported that as many as 2 dozen have returned to the fight..
The 60 Saudis who were released were treated to new cars, resort stays, help finding jobs and help finding brides, to stop them from returning to terrorism related crimes." The Saudis know how to stop terrorism. U.S. judges and members of Congress should take a tip from the Saudis as to what to do with Guantanamo prisoners and "people" suspected of terrorism related crimes.
Three judges want to do evil, but first they want Congress to pass a law making it legal to do such a corrupt and despicable thing.
Evil: “To enrich yourself upon the misery of another.”
For the judges want to please the public, to enrich with unlimited safety the public upon the misery of those who are not the public. Satanic judges striving to please a satanic public actually.
Root cause of such an anxiety driven need for safety being our self-absorbed majority with a guilt complex for having good jobs, quality homes and lifesavings invested in a defense economy. For they know that our military is being used to protect their oil rights in the Middle East and to keep in power corrupt dictatorships, and they want to plunder in complete safety. Which is what their War on Terror is all about.
Of course, no one can have safety when they destroy the safety of others, which is what evil is all about.
"they want Congress to pass a law making it legal"
which is not the same as legitimate or moral.
These would be the brothers in black robes to those who just handed your country over to the tender mercies of the Corporations.
All three branches of your government are now corrupt, irrelevant.
So. Whatcha gonna do 'bout it?
"Graham said legislation should also create clear steps for addressing the greatest fear in these cases: The possibility that someone who is ordered to be released will commit an atrocity. "
And here I was thinking that keeping an innocent person behind bars for life was the greatest fear. Thanks for clearing that up.
Surely you have hit the gut issue, should we destroy the safety of others to greater protect out safety?
For such an action makes us a stench in the nostrils of all good man of integrity, and we can kiss goodbye forever any hope of having safety.
I always thought that bringing a suspect to a speedy trial was the way to determine whether they were dangerous or not, based upon whether they were found guilty or not. Silly me, truth is false. When will I ever learn?
peacekeepertwo: Did anyone ever stop to consider, that maybe the governments Case is so weak, because these people are not guilty of the crime,they are charged with. Inmates may be going home to join with terrorist, to seek revenge for way they were treated while in US Custody.
New laws are not needed. We already have basic laws (called the Constitution) and clearly applicable subsequent national and international laws. What is needed is judges able and willing to enforce those laws. What they are asking for is a veneer of legality to get around that constitution and those laws.
An over riding problem is the fact that most certainly there are some prisoners not happy about their immoral, unjust and illegal treatment who are eager to gain vengeance but further collective punishment is not the way to deal with the consequences of Bush/Cheney/Rumsfeld & Co. acts.
bush/cheney/rumsfeld/OBAMA & co.
The assertion that released "illegal" persons will automatically seek vengance in violence is no less pertinent than noting the instance when reportage refers to detainees as 'people'.
What is the difference between a terrorist and a criminal?
A 'terroritst' is a criminal being used by a third party agenda, be it political excuse to wage occupation by war as in the case of the US government in Iraq and Afghanistan, or 'criminals' of other origins doing the same thing in a different way.
It is very important to remain conscious of the virtually semi-hallucinatory conflation of meanings and agendas that are being agitated.
Criminals are not what we fear, what we (are being told to) fear is the assertion by our own government that we must remain alienated from the right to exercise the social contract as human beings as constitutional and natural right.
If you fear your government's assertions: you fear your government.
If you fear your government: you fear criminals.
Is there a piece in the US constitution that refers to "illegal non- combatants". Is this a Bush era invention to circumvent the requirements of the constitution. If so all accused of illegal activities should be tried by a court. If found guilty they should be put in jail. If not release them.
Isn't it funny, how we have allowed the very word "terrorist" to create a whole new universe of law & morality, to wipe out the rules & guidelines by which we have lived successfully for several hundred years?
I don't think we should be so condescending about the general understanding of the people with regard to these matters. Consider the magnitude of the effort put forward by our lords & masters to obfuscate the issues & perpetuate a high level of thought-destroying fear. The court, in this case, is cooperating with this effort, by pretending to need some new excuse to do the inexcusable: ignore the clear direction of already existing rights & laws. Do they routinely ask whether a felon, having served the term imposed by the court in which he or she was convicted, should continue to be incarcerated in case another crime might be committed? After a successful appeal, does the court ask for further guidelines as to whether to release the appellant? This whole situation acquires more stink the longer it goes on, & the court is only making it worse.