Back at You Guys on Detention Prognostications

Marty as usual offers an

elucidating post

in response to my question about whether Congress is likely to wade back into terrorism detention issues this coming summer. But I gotta say, Marty, I’m closer to


on the key point. Just because a court decision in


might leave no serious reason why Congress


act before the election, doesn’t mean Congress won’t.

Though I’m well out of my depth in political punditry, I’ve tended to view the odds of major terrorism legislation pre-election as slim—the administration is too weak, the substantive and electoral stakes too high, and the members’ political interests too diverse to get something passed this time around, especially something as mammoth as a new court, or administrative detention scheme. That said, Sen. Leahy this week is hosting a Senate judiciary committee hearing on how well the federal courts handle terrorism cases, featuring several witnesses who think (for deeply well-informed reasons) the federal courts do better than any plausible alternative. Someone felt the need to push back against some brewing detention storm. My hope remains they’re just whistling in the wind.

On Marty’s particular point that Congress is unlikely to think about a trial system because Boumediene isn’t actually about the military commission/war crimes trials at Guantanamo. Quite right, Boumediene is directly about the far less elaborate process for determining whether someone is properly detained as a “combatant” (problematically defined), whether or not they’ve actually committed a crime under U.S. or international law. But while that distinction appropriately matters a lot to the court, it’s not at all clear Congress wouldn’t want to try to deal with both matters at once (as it did the last time it legislated on the topic in 2006). Indeed, the security court proposals I’ve seen floating around are geared toward putting these two decisions institutionally together, merging the terrorism trial function and indefinite detention supervision function (through something like periodic review) under the control of a single body, abandoning the federal courts for criminal terrorism trials and codifying a more formalized system of preventive detention going forward. The no-doubt attractive idea is to fix the Guantanamo mess in one fell swoop. 

But here’s the thing, and with apologies to Justice Holmes—the security court idea lets the hard case of Guantanamo make terrible law for counterterrorism detention going forward. The options for fixing Guantanamo are now grossly limited and badly skewed by the consequences of a series of years-old decisions to torture some of the detainees, and to delay any serious inquiry into all of the detainees’ status until time and distance from evidence about the circumstances of their capture have made a meaningful hearing all but impossible. Courts-martial or criminal trials are far more difficult now since evidence obtained under coercion is inadmissible. Administrative hearings that might have been sufficient under the Geneva Conventions if conducted upon capture are now plainly inadequate. At this stage, none of the options are ideal. And none is a promising base line from which to design all detention policy going forward.