Yaser Hamdi is the U.S. citizen who was captured in Afghanistan
— allegedly a member of the Taliban — then designated as an
“enemy combatant” and held incommunicado in a military brig for
more than two years without any charges filed. Now he has been
released. Hamdi has renounced his U.S. citizenship and moved to
Saudi Arabia.
Two years ago, the Justice Department argued that allowing Hamdi
to see a lawyer “jeopardizes compelling national security
interests” and would “interfere with if not irreparably harm the
military’s ongoing efforts to gather intelligence.” That was then.
Now, presumably, he’s harmless enough to let loose.
So if Hamdi ever posed a real threat, the administration must
have neutralized that threat. But no Bush official has offered that
explanation. Perhaps Hamdi was never more than a foot soldier — a
POW, not a full-blown national security risk. If so, why did it
take more than two years to find out? Those questions remain
unanswered despite the Supreme Court’s recent consideration of the
Hamdi case.
Basically, the Court held that the government “may detain, for
the duration of these hostilities, individuals legitimately
determined to be Taliban combatants.” Nonetheless, said the Court,
“indefinite detention for the purpose of interrogation is not
authorized.” That means, at a minimum, Hamdi was entitled to a
“fair opportunity to rebut the government’s factual assertions
before a neutral decision-maker.” In other words, Hamdi should have
gotten a hearing and legal counsel.
That was the right decision, as far as it went. But it left many
unresolved issues: Is civil judicial review available to all
detainees who contest their status, or can a military tribunal
settle those disputes? What federal courts have jurisdiction? Must
detainees have access to a lawyer? Can the government monitor
lawyer-client meetings? What are the procedures for handling
classified information? Will detainees have access to overseas
witnesses? Can the government use evidence that would ordinarily be
inadmissible? Do the Geneva Conventions apply to detainee status
determinations?
It’s tempting to criticize the Court for leaving so much
unfinished business. On the other hand, the Court is not charged
with legislative responsibility. That role belongs to Congress,
which has been conspicuously absent in establishing a legal
framework to deal with post-9/11 national security and civil
liberties tradeoffs. Unlike ordinary crime, terrorism entails
massive loss of life. So a powerful argument can be made for
changing the rules. We must be able to detain reprobates like
pilot-trainee Mohammed Atta, even if our criminal laws have to be
altered. But if we do change the rules, the process cannot be
implemented by executive edict without congressional input. And it
cannot be law on-the-fly, with no knowledge of the rules by anyone
other than the executive officials responsible for their
enforcement.
A different legal regime might apply to U.S. citizens and
resident aliens than it does to non-resident or illegal aliens. It
might depend on where the suspect was apprehended, or what he was
doing at the time. One possible regime — building on suggestions
by journalist Stuart Taylor — goes like this: To detain a citizen
or resident alien without filing charges or allowing access to
legal counsel, a high-ranking federal official — e.g., the
president, attorney general, or secretary of defense — must
certify to a federal judge a reasonable belief that (1) the suspect
is a member of an international terrorist group, (2) his release
would endanger public safety, and (3) his prosecution is not viable
because he committed no crime, or because evidence would be
inadmissible or classified.
Once that certification is made, the government could detain the
suspect for a limited period, say one month, under non-punitive
conditions, with compensation owed if a judge ultimately determines
that the accusations are unfounded. After the initial month,
extended detention could be requested every few months on
re-certification by the government of its original criteria in an
open federal court proceeding. At that time, the detainee would
have access to exculpatory evidence and legal counsel, as well as a
right to call witnesses.
Of course, Congress needs to flesh out that skeleton. The
essential point, however, is that the administration cannot
unilaterally designate someone as an enemy combatant, whisk him
away, detain him indefinitely without charges, deny him legal
counsel, and prevent him from arguing to a “neutral decision-maker”
that the whole thing is nothing but a mistake. That doesn’t require
the Justice Department to provide every battlefield detainee with
an attorney and a full evidentiary hearing. But it does require
that extraordinary measures to accommodate the age of terror have
to be authorized by Congress, not decreed by the executive
branch.
