The Judiciary is No Place to Make National Security Decisions

Conn Carroll /

Politico reports today:

Growing evidence that the Nigerian man charged with trying to blow up a commercial airliner as it landed in Detroit Friday spent time in Yemen and may have been fitted with customized, explosive-laden clothing there could complicate the U.S. government’s efforts to send home more than 80 Yemeni prisoners currently at Guantanamo Bay.

Since Yemenis represent almost half of the roughly 200 remaining prisoners at Gitmo, new hurdles to their resettlement could spell more trouble for President Barack Obama’s plan to close the island prison while transferring a limited number of detainees to a prison in the U.S.

Whatever links Umar Farouk Abdulmutallab may or may not have with Yemen, it is Congress and the Obama administration that is to blame for the lack of coherent rules and procedures for handling terrorism suspects. As Benjamin Wittes and Jack Goldsmith reported last week, key members of the judiciary are now pleading with the President and Congress to do their jobs:

Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules — a person with as holistic and in-the-weeds an understanding of the issues as is possible.

Last week, in ruling on the merits of a detainee’s case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that “go to the heart of our judicial system.”

“It is unfortunate,” he said in an oral opinion from the bench, “that the Legislative Branch of our government and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases.” While allowing that the various judges were “working very hard and in good faith,” he lamented that “we have different rules and procedures being used by the judges,” as well as “different rules of evidence” and “a difference in substantive law.” For Judge Hogan, it all “highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned.”

Judge Hogan is not the first to call out Congress and the President for their failure to craft necessary detainee legislation. Heritage Senior Legal Fellow Cully Stimson wrote this September:

In a stunning display of political cowardice, the Obama administration has decided not to seek specific congressional authorization for a prolonged detention statute for Guantanamo Bay detainees deemed too dangerous to set free. It’s the latest troubling flip flop by the president, an utter abdication of the lofty promises he made during his much-heralded National Archives Speech just this May.

This decision not only weakens U.S. detention policy, it will regrettably serve as an invitation to the courts to expand their role in national-security affairs — an area that is properly the province of the executive and legislative branches.