Congress Should Act Fast — A National Law Journal Commentary by Carl Tobias
August 16, 2005
This commentary by Williams Professor Carl Tobias originally appeared in the August 15, 2005 edition of the National Law Journal.
Congress should act fast
A little more than one year ago, the U.S. Supreme Court ruled that almost 600 individuals whom the U.S. government had detained in the prison at Guantánamo Bay, Cuba, as "enemy combatants" for more than three years were entitled to some due process. Nonetheless, as this anniversary passed, most detainees had received little or no process.
Many American citizens and much of the international community have urged the prison's closure. The significant responsibility for regulating detainees that the Constitution assigns Congress, the controversy that surrounds detainee treatment and escalating worldwide criticism of the Guantánamo facility mean that Congress should at least legislate measures to cover detainees, even if the prison remains open.
In a recent Senate Judiciary Committee hearing, Senator Arlen Specter, R-Pa., the chairman, observed that judicial decisions have established a "crazy quilt" of rules governing the 520 people who are now detained. On June 28, 2004, the Supreme Court resolved three major detention cases, by issuing 13 separate opinions, which essentially required federal courts to accord detainees a modicum of due process.
In an ostensible effort to comply, the Department of Defense (DoD) impaneled combatant status review tribunals (CSRT) for the 560 still-imprisoned detainees. The CSRT conducted rudimentary proceedings to ascertain whether the detainees were enemy combatants and released three dozen who, the tribunals concluded, were not. The CSRT afforded detainees few basic protections. Many lacked counsel. The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified. Moreover, detainees had no right to present witnesses or to cross-examine government witnesses.
Since the Supreme Court issued its opinions, 200 detainees have filed habeas corpus petitions challenging their detentions and the CSRT process in U.S. district court. Last autumn, the United States also prosecuted a few detainees in military tribunals instituted under President George W. Bush's November 2001 executive order creating the tribunals. A D.C. district judge suspended that proceeding mainly because it violated the Uniform Code of Military Justice (UCMJ), but the U.S. Circuit Court for the District of Columbia reversed this ruling in July. DoD then announced that it would resume these trials. The DoD rules implementing the tribunals grant minimal due process, and the Supreme Court may well invalidate them. This litigation might not be resolved for years.
At this summer's hearing, Specter astutely remarked on legislative development of detainee procedures. He said the "only unifying factor" in the many high court pronouncements was that this was actually Congress' job, for which the justices "made a pretty good case." Specter also quoted the Constitution, which expressly authorizes lawmakers to "define and punish offenses against the law of nations," and "make rules concerning captures on land and water." He lamented congressional inaction, noting that considerable legislation had been introduced since 2002, "but none of it has gone anywhere."
A deteriorating situation
Congress should now adopt measures governing detainees. Prompt action will enable lawmakers to fulfill their constitutional duty, to begin repairing America's tarnished global reputation and to address growing dissatisfaction with detainee treatment expressed here and abroad. The recent agreement whereby Afghanistan will accept custody of 100 Afghan Guantánamo detainees and the negotiation of similar accords with Saudi Arabia and Yemen could ameliorate, but will not solve, the underlying problems. Should Congress fail to legislate, the executive will likely maintain the status quo, and this inaction will exacerbate a deteriorating situation.
Lawmakers have several readily available options. Many bills define "enemy combatants" and institute procedures for challenging this label's imposition. Military tribunal authorization legislation would elaborate on the measures in Bush's executive order and the DoD implementing regulations. Some proposed amendments would specifically proscribe "cruel, inhuman or degrading" treatment of detainees and would limit military interrogation measures to techniques that a new Army field manual authorizes. Provisos similar to UCMJ rules appear best, as they are a familiar, proven template.
Legislation should at least prescribe many relevant details. It must specify who would be neutral decision-makers, what is the applicable standard for enemy combatant designations and for convictions and who assumes the burden of proof. It should also provide for detainee access to evidence and witnesses and set forth what evidence the United States might introduce against detainees and how they may challenge the government. Moreover, a statute must prescribe how many votes are necessary to find that someone is an enemy combatant or is guilty, and to impose punishment.
Legislating in these areas will at least bring some order out of chaos. Numerous members of Congress, especially Specter, have earned much credit for discharging the complex, controversial assignment to scrutinize procedures that govern detainees. The anniversary of the Supreme Court rulings and the likelihood of prolonged detention mean that Congress should now act quickly by prescribing measures that correctly balance detainees' interests and national security.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.