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
"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
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
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?"
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
"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 
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
"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
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."