Why the shock about court rulings on Guantanamo detainees?

Tuesday, February 9, 2010

Like Captain Renault in "Casablanca," Ben Wittes and Robert Chesney ["Piecemeal detainee policy," Washington Forum, Feb. 5] are "shocked, shocked" that federal judges deciding habeas corpus cases brought by Guantanamo Bay detainees have reached differing results.

They argue that Congress must step in to bring clarity and consistency. But their complaints are predicated on a naive view of both the judicial process and the legislative process, and their prescription is unlikely to solve the "problem" they identify.

No one should be surprised that different judges reach different results on difficult legal issues. That's why we fight about judicial appointments and why we have an appellate process that facilitates uniform rules.

Nor is legislation likely to reduce the disagreements. First, it is wildly optimistic to think that this Congress could agree on a detention standard. Second, the inquiries involved -- such as assessing whether statements are voluntary or coerced, how far the "taint" from a coerced statement extends to other evidence, or whether an individual poses a threat that warrants preventive detention -- are not susceptible to bright-line rules, but require careful case-by-case application of standards. It's a job for judges, not Congress.

That's why judges have been exercising habeas corpus review for centuries, with only the most general of statutory guides. And, yes, for centuries different judges have disagreed about how to apply the law. Like gambling, judgment will be with us forever.

David Cole, Washington

The writer is a member of the board of the Center for Constitutional Rights, which represents some of the Guantanamo detainees.

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