Team Infidel
Forum Spin Doctor
Washington Post
September 17, 2008
Pg. 18
A Senate proposal on the legal process for Guantanamo Bay prisoners has some serious flaws.
AFTER SIX YEARS of detention, Lakhdar Boumediene triumphed in the Supreme Court this summer, winning for himself and others the right to challenge their confinement at the U.S. Naval Base at Guantanamo Bay, Cuba. Now comes the hard part.
Mr. Boumediene's legal team was back in court last month, wrangling with lawyers from the Justice Department over what rules should govern the habeas corpus process for detainees. Should the burden of proof be on the government to show that it has enough evidence to hold Mr. Boumediene, or should the detainee have to prove he is being wrongly held? How much of the government's evidence should Mr. Boumediene and his lawyers be permitted to examine? If Mr. Boumediene prevails, does the judge have the power to release him into the United States? Such questions have already arisen and are likely to surface many times more in the coming months, as the 15 judges of the U.S. District Court for the District of Columbia decide the roughly 250 detainee cases now wending their way forward.
By introducing the Enemy Combatant Detention Review Act of 2008, Sens. Lindsey O. Graham (R-S.C.) and Joseph I. Lieberman (I-Conn.) have rightly stepped in to fill the void with legislation. But their offering comes too close to replicating some of the failed processes at Guantanamo that gave rise to Mr. Boumediene's landmark case.
For example, under their proposal, a detainee would have to clear a procedural hurdle before he could present evidence or call witnesses. This might streamline the process, preventing protracted "mini-trials" in many cases, but it would not be appropriate for these proceedings. In typical habeas cases, defendants have had the benefit of a trial before lodging a challenge. Those held at Guantanamo have not had such an opportunity and should be allowed immediately to make as forceful a case as possible for their release. The bill also calls for the judge to make findings based on the "preponderance of the evidence" -- a generally low bar -- but it does not say which party would have to shoulder the evidentiary burden. If the government is to continue to hold someone, it must prove that it has the legal right to do so.
The bill does make strides over previous detention regimes. It would guarantee, for example, legal representation for all detainees and let them introduce evidence and call witnesses, as long as the judge found "clear and convincing" evidence that military and intelligence operations would not be compromised. If in-person testimony was not workable, live or taped video testimony could be introduced. The government lawyer would have to give the detainee's lawyer any exculpatory evidence in his possession. The bill would prohibit a detainee's release into the United States, except by order of the president.
In a sensible compromise, detainees would be prohibited from directly reviewing classified information but would be entitled to "adequate" summaries of the evidence; their lawyers, who would have to obtain security clearances, would be permitted to review the evidence itself -- even though they would not be allowed to discuss specifics with their clients. The bill would require judges to seal evidence at the government's request; it should also allow the judge to unseal information if disclosure was later assessed not to be a threat to national security.
September 17, 2008
Pg. 18
A Senate proposal on the legal process for Guantanamo Bay prisoners has some serious flaws.
AFTER SIX YEARS of detention, Lakhdar Boumediene triumphed in the Supreme Court this summer, winning for himself and others the right to challenge their confinement at the U.S. Naval Base at Guantanamo Bay, Cuba. Now comes the hard part.
Mr. Boumediene's legal team was back in court last month, wrangling with lawyers from the Justice Department over what rules should govern the habeas corpus process for detainees. Should the burden of proof be on the government to show that it has enough evidence to hold Mr. Boumediene, or should the detainee have to prove he is being wrongly held? How much of the government's evidence should Mr. Boumediene and his lawyers be permitted to examine? If Mr. Boumediene prevails, does the judge have the power to release him into the United States? Such questions have already arisen and are likely to surface many times more in the coming months, as the 15 judges of the U.S. District Court for the District of Columbia decide the roughly 250 detainee cases now wending their way forward.
By introducing the Enemy Combatant Detention Review Act of 2008, Sens. Lindsey O. Graham (R-S.C.) and Joseph I. Lieberman (I-Conn.) have rightly stepped in to fill the void with legislation. But their offering comes too close to replicating some of the failed processes at Guantanamo that gave rise to Mr. Boumediene's landmark case.
For example, under their proposal, a detainee would have to clear a procedural hurdle before he could present evidence or call witnesses. This might streamline the process, preventing protracted "mini-trials" in many cases, but it would not be appropriate for these proceedings. In typical habeas cases, defendants have had the benefit of a trial before lodging a challenge. Those held at Guantanamo have not had such an opportunity and should be allowed immediately to make as forceful a case as possible for their release. The bill also calls for the judge to make findings based on the "preponderance of the evidence" -- a generally low bar -- but it does not say which party would have to shoulder the evidentiary burden. If the government is to continue to hold someone, it must prove that it has the legal right to do so.
The bill does make strides over previous detention regimes. It would guarantee, for example, legal representation for all detainees and let them introduce evidence and call witnesses, as long as the judge found "clear and convincing" evidence that military and intelligence operations would not be compromised. If in-person testimony was not workable, live or taped video testimony could be introduced. The government lawyer would have to give the detainee's lawyer any exculpatory evidence in his possession. The bill would prohibit a detainee's release into the United States, except by order of the president.
In a sensible compromise, detainees would be prohibited from directly reviewing classified information but would be entitled to "adequate" summaries of the evidence; their lawyers, who would have to obtain security clearances, would be permitted to review the evidence itself -- even though they would not be allowed to discuss specifics with their clients. The bill would require judges to seal evidence at the government's request; it should also allow the judge to unseal information if disclosure was later assessed not to be a threat to national security.