Amid the uproar over the possible responsibility of White House Counsel Alberto Gonzales in the abuse of many "enemy combatants," a substantial consensus on the need for congressional rules to govern the detention of such people is quietly emerging among experts, including moderate conservatives, moderate liberals, and even some strong libertarians.
The underlying issue — one of the most vexing posed by the war against terrorism — is when to detain suspected terrorists who seem bent on committing mass murders but who cannot be criminally tried because critical evidence is inadmissible, inconclusive, or too sensitive to be publicly disclosed. The emerging consensus is not over what the detailed rules should be, but rather over the need for President Bush to stop making them up as he goes along and to start working with Congress.
Bush shows every sign of proceeding in his usual unilateral, ad hoc fashion. And Congress continues to abdicate its constitutional responsibility to provide a legislative framework, at a time when The Washington Post reports administration officials "are preparing long-range plans for indefinitely imprisoning suspected terrorists." (Officials tell me that there is nothing new about the long-range detention plans, except for a push to improve living conditions and expand the privileges of those no longer being actively interrogated.)
But among moderate mainstream experts, there is growing agreement that comprehensive rules on enemy-combatant detainees — especially those seized or held in the United States — should be adopted the old-fashioned way, by the body to which the Constitution assigns "all legislative powers."
No longer should executive fiat determine such matters as how much evidence is necessary to detain such suspects; how long they can be held without criminal charges; whether and how much access they should have to counsel; how long they can be interrogated in isolation before getting such access; how much more due process should be afforded people captured in this country than those captured on foreign battlefields; whether citizens should get better due process than noncitizens; and how to divide authority over such cases between military and civilian tribunals.
(For a tentative sketch of such a law, see my July 20, 2002, column, "Let’s Not Allow a Fiat to Undermine the Bill of Rights," p. 2143.)
Among those who see the need for such legislation are some respected former officials of the Bush Justice Department, including Judge Michael Chertoff of the U.S. Court of Appeals for the 3rd Circuit, and professors Jack Goldsmith of Harvard Law School and Viet Dinh of Georgetown Law School; some other moderate conservatives, including Paul Rosenzweig of the Heritage Foundation; some libertarians, including Robert Levy of the Cato Institute; and some moderate Democrats such as professor Neal Katyal of Georgetown Law School, a veteran of the Clinton Justice Department who has helped lead legal challenges to the fairness of the "military commissions" that Bush created to try some of the prisoners at Guantanamo Bay for war crimes.
"The president has the power to detain enemy combatants, including U.S. citizens, until the end of the relevant conflict," stresses Goldsmith. (Katyal and most other experts agree.) But, Goldsmith adds, "because of the novel issues raised by this conflict, it would be prudent for the president to bring Congress on board in designing and legitimizing procedures appropriate for the identification and long-term detention of enemy combatants, especially those held in the United States. Trade-offs between liberty and security, and attendant accountability for errors of over- or under-protection of liberty or security, should rest with the political branches and not … with the courts." A congressionally approved process is also more likely to hold up in court, he notes.
The Bush White House seems to think that asking Congress for help on such matters is for wimps and sissies. To the contrary, "when the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate," as Justice Robert Jackson wrote in a famous 1952 concurrence.
Congressional debate and compromise would also avoid the kind of egregious overreaching that is likely to backfire against the president, as did Bush’s claim of power to hold any U.S. citizen whom he labels an "enemy combatant" indefinitely, for incommunicado interrogation, with no access to a lawyer and no meaningful opportunity even to protest his innocence to a judge. The Supreme Court rejected that claim on June 28 by 8-1, holding that due process requires giving each detainee (at least those who are U.S. citizens held in this country) a chance to persuade a judge or other "neutral decision maker" that he is an innocent noncombatant.
While the power to detain captives properly determined to be enemy combatants until the end of the conflict has long been established, the nature of the current war — in which enemy infiltrators can be difficult to distinguish from innocent civilians and in which no end is in sight — brings that power into tension with civil libertarians’ long-standing horror of preventive detention.
"For hundreds of years since the Magna Carta, it has been recognized that no power is more plainly threatening to individual freedom and the rule of law than the power to detain without a showing to a judicial officer of a violation of a statute," in the words of "Preserving Security and Democratic Freedoms in the War on Terrorism," an impressively reasoned, 187-page report issued in November by a group of experts headed by Philip Heymann of Harvard Law School and Juliette Kayyem of Harvard’s John F. Kennedy School of Government.
But even some civil libertarians recognize that the threat now posed by fanatical Islamist terrorists who are trained to lurk in our midst and murder as many of us as possible may make some kind of preventive detention system necessary — or at least so inevitable that it would be better to have a careful congressional scheme than more Bush ad-hockery.
These libertarians may find some common ground with such former officials as Goldsmith and Judge Chertoff, who said in an op-ed column last summer: "Judges cannot and should not be expected to construct a new legal architecture for the war on terror. This involves weighty policy, and that is the domain of Congress and the executive. Yet, so far, neither has systematically sketched the legal framework for the demands of this new kind of war…. Those with various points of view need to sit down, haggle over differences, then write the laws that will balance our new national security needs with our civil-libertarian values…. That process of debate and compromise builds the public support that is indispensable to a long-term strategy for coping with terrorism."
The most contentious issue — apart from the possible torture and abuse of many detainees — may be the preventive detention of suspected Qaeda operatives seized in this country. In the wake of the 9/11 attacks, the administration stretched its immigration-law powers and the material-witness statute to round up and detain more than 1,100 foreigners based on the thinnest suspicions of Qaeda links. More chilling has been the indefinite military detention of Jose Padilla, the U.S. citizen and suspected dirty-bomb plotter who was arrested at Chicago’s O’Hare Airport in 2002, and two other men. There may someday be many more such detainees, given the likelihood of further attacks and Bush’s continuing claim of power to seize anyone whom he brands an enemy combatant, anywhere.
"The administration is right to say 9/11 creates a new paradigm," says Neal Katyal. "But that paradigm doesn’t justify dispensing with the essence and structure of constitutional government. Congress should begin work on a framework statute for detentions immediately."
One noted civil libertarian who would consider supporting a carefully limited preventive detention statute is David Cole of Georgetown Law School. But he stresses that "at a minimum, any such law would have to 1) apply nondiscriminatorily to citizens and noncitizens alike; 2) be subject to prompt and fair judicial review, requiring the government to make a compelling showing of necessity; 3) be strictly limited in time; and 4) most importantly, would have to be accompanied by a clear prohibition on the use of immigration authorities and other end-runs to achieve preventive detention without such constraints."
Reaching consensus on detailed rules may be impossible. But a reasonable compromise could be worked out. As Justice Sandra Day O’Connor wrote in the June 28 decision, "A state of war is not a blank check for the president." It’s past time for Bush — and Congress — to take that message to heart.