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The courts' shifting rules on Guantanamo detainees

By Benjamin Wittes and Robert Chesney
Friday, February 5, 2010; A17

One judge rules that a detainee's statements to his military review tribunal are tainted by past coercion -- and orders him released. Within days, another judge rules that a detainee's statements to the same sort of tribunal are not tainted, despite similar abuse -- and affirms his detention.

One judge rules that to justify a detention, the government must prove that a detainee poses a future threat -- and orders freed a Guantanamo Bay detainee who acknowledges a past relationship with al-Qaeda but has cooperated with authorities since his capture. Another judge rules that a detainee need not pose a future danger and permits the continued detention of a man whose future threat he describes as a "ludicrous" prospect.

President Obama's decision not to seek additional legislative authority for Guantanamo detentions, along with Congress's lack of interest in taking on the subject, means that, for good or for ill, judges must write the rules governing military detentions of terrorist suspects. But the judges hearing habeas cases from the nearly 200 detainees remaining at Guantanamo do not agree on what the rules should be. Indeed, on the most basic architectural features of any detention system, they disagree profoundly.

They disagree about what the government needs to prove for a court to sign off on a detention, about what evidence it may employ in doing so and about how deeply a court should probe material collected and processed for intelligence purposes. They disagree about the substantive scope of the government's detention authority -- what sort of person the government may lock up under its power to wage war against al-Qaeda and the Taliban. They disagree about whether and when a detainee can sever his relationship with enemy forces such that his detention is no longer a legal option. They disagree about how to handle hearsay evidence that courts in normal cases would eschew. And they disagree about how to handle detainee or witness statements alleged to have been extracted through abuse or in the aftermath of abuse.

So fundamentally do the judges differ on the basic design elements of American detention law that their differences are almost surely affecting cases' bottom lines. While it is impossible to be certain that any given case would have turned out differently had a different judge heard it, judges have articulated standards across a range of issues that, if applied to cases decided otherwise by their colleagues, would require different outcomes. That is, some detainees freed by certain judges would probably have had the lawfulness of their detentions affirmed had other judges -- who have articulated different standards -- heard their cases. And some detainees whose incarceration these other judges have approved are likely to have had habeas writs granted had the first group of judges heard their cases.

The chaos is not the judges' fault. It stems from decisions made above their pay grade in all three branches of government. The Supreme Court asserted jurisdiction over Guantanamo in summer 2008 but then coyly refrained from giving any guidance on the myriad important questions that the cases it authorized would predictably generate. The Bush and Obama administrations both declined to pursue legislation that might have guided the courts in adjudicating these matters. And Congress has shown a relentless tendency to play politics with Guantanamo rather than offer itself as a constructive partner for either administration. Their joint irresponsibility has produced an unprecedented delegation of a major legislative function to the courts -- to a group of judges with different predilections, instincts and approaches to vexing questions that lack obvious answers.

The result is that until Congress or the appellate courts -- and, ultimately, the Supreme Court -- harmonize these wildly different approaches, a detainee's likelihood of prevailing in his habeas suit will be largely a function of which judge hears his case.

One can make a good argument for more or less restrictive detention rules -- but there is no good argument for unclear rules. They create long delays and uncertainty for detainees. They also create uncertainty for forces in operational settings concerning what they can and cannot do, whom they can and cannot hold, and what actions will and will not survive subsequent scrutiny and review.

One way or another, Americans should know what patterns of behavior will support a detention in federal court; which, by contrast, will require a detainee's release; and what evidentiary and procedural rules will govern such proceedings. Should the government be able to detain someone when it proves that he traveled extensively on false documents, attended radical mosques where al-Qaeda recruited people for jihad, was recruited at one and went to Afghanistan on the recruiter's dime specifically intending to join up, and stayed at a guest house there that acted as a gateway for terrorist training? The judge who heard this case thinks not, absent affirmative proof that the detainee later actually attended a training camp. Some of her colleagues would probably think otherwise. Do we really want them making this policy judgment?

Benjamin Wittes is a senior fellow at the Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law. Robert Chesney is a non-resident senior fellow at the Brookings Institution and a member of the faculty at the University of Texas School of Law. Along with Rabea Benhalim, they are co-authors of the recent Brookings report "The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking."

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