Commentary: Did Boumediene leave too much undone?
on Dec 22, 2009 at 5:20 pm
Commentary
Eighteen months ago, the Supreme Court decided Boumediene v. Bush, assigning federal trial judges in Washington, D.C., a major new role in crafting the rules that would govern the government’s power to detain individuals suspected of terrorism. In recent months, those judges have been making considerable progress in filling the gaps that the Justices left. But the judge who has had the key leadership role is clearly frustrated. The unanswered question is whether his colleagues on the District bench feel the same way.
Thomas F. Hogan, a senior District Court judge who more than a year ago took the role of coordinator of more than 200 detainee habeas cases, spoke out earlier this month in his courtroom as he ordered the continued confinement of a Yemeni national who, the judge candidly commented, does not pose “a continued threat to the security of the United States.” (The 57-page transcript of that session is here; his oral ruling is to be followed by a written opinion next month.) Hogan had no choice, he said, because the law as it now stands compelled a finding that Musa’ab Al Madhwani must remain in detention.
The judge did not blame the Supreme Court, although the Court’s ruling in Boumediene expressly left it to judges like Hogan to implement on a case-by-case basis the newly established constitutional right for Guantanamo Bay prisoners to go to court to challenge their captivity. Hogan’s grievance, instead, was that the trial judges have found that process very difficult, so much so that he wondered aloud whether Congress and the Executive Branch have let down the judges, and whether a completely new start should be made, perhaps with a new special detention court.
He and his colleagues, he said, have “tried very hard to move these cases, but we are operating…with the procedures, new rules of evidence that will need clarification. It is unfortunate, in my view, that the Legislative Branch of the government, and the Executive Branch, have not moved more strongly to provide uniform, clear rules and laws for handling these cases.”
Of course, the judge did not mention it, but both of those other branches did not want the courts to have any role at all in determining who is detained during armed conflict. The two political branches combined in several efforts to block all habeas challenges by prisoners at Guantanamo and elsewhere, only to have the Supreme Court repeatedly nullify those efforts — most energetically in Boumediene.
 Hogan noted that he and his colleagues have adopted different “substantive law” standards on when further detention was justified. “That needs to be somehow resolved,” he went on, “and I think that would have been best for the Legislature to have passed new rules and procedures and rules of evidence to handle these cases.”
There is, he argued, “a need for a national legislative solution. It wold be appropriate “at another time and place,” he said, “to talk about a new court to handle these [cases],” perhaps modeled on the secret Foreign Intelligence Surveillance Court that approves government requests for secret intelligence-gathering wiretapping.
The existing system, Hogan said, is rather “an unfair process for the detainees in this sense that the law moves at a glacier pace, and since this is all new law in many areas, it has to be litigated through the circuit [D.C. Circuit Court], which the circuit moves in very due deliberate speed.”
In reaching the decision he did to prolong Al Madhwani’s captivity, Hogan actually relied on a more expansive standard of government power to detain than at least three of his colleagues have adopted. And, in fact, he relied upon two particular kinds of evidence that some of his colleagues have found, in other cases, did not warrant continued confinement. One was that Al Madhwani had undergone about three weeks of weapons training in a camp in Afghanistan run by the Al-Qaeda terrorist network, and then had traveled for a year in Afghanistan and Pakistan with people he had to have known were Al-Qaeda terrorists.
Hogan also relied on statements that Al Madhwani had given before two U.S. military review panels — neither of which the Supreme Court regarded as adequate mechanisms for weighing the need for continued detention.
And the judge expressly refused to embrace the view of one of his colleagues that the only reason for continued detention was to assure that a captured individual did not return to hostilities against the United States.Â
His favorable comments about Al Madhwani hinted that the judge personally might favor a more demanding justification for detention, but that was beyond his judicial grasp. “I do not accept the rationale…that [because] the government had shown a basis for his detention…means that he should not be released. I see nothing in the record that [he] poses any greater threat than the dozens of detainees similarly situated who have been transferred or cleared for transfer.”
The judge continued: “In fact, his record is a lot less threatening, including the government’s own records that they know of, that do not give any basis for his continued detention, although I have found that he was originally, and he has been, detained legally by the government…I think it’s a very close case.”
The judge’s plea for help from the other branches of government echoes what some scholars, skeptical of the judicial process in this context, have been recommending for months. Indeed, Hogan’s comments were cited specifically in a newspaper opinion column Tuesday by two of those private advocates — law professor Jack Goldsmith and think-tank analyst Benjamin Wittes. (Their Washington Post column is here.)
