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.