Litigation

Elected Branches Urged to Craft ?Coherent? Detainee Rules

By Peter Hardin

An influential voice among federal district judges has issued an “urgent plea” for Congress to participate in shaping American detention policy, and to help draft uniform and coherent procedures to fix a policy that is in disarray, two scholars write in a Washington Post commentary.

Judge Thomas F. Hogan of the U.S. District Court in Washington, D.C., said in an opinion delivered from the bench, “It is unfortunate 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.”

The job of setting current detention policy has moved away from the Executive Branch to federal judges who cannot claim expertise in terrorism or national security, and who do not answer to the electorate,   Jack Goldsmith and Benjamin Wittes write in the column, headlined, “A role judges should not have to play.”

The authors point to Judge Hogan as a jurist in the middle of handling detainees’ habeas petitions and managing common detention issues with fellow judges, and as a voice who warrants  respect. With the Obama administration planning to shutter the Guantanamo Bay detention facility and open a new facility in Illinois, the timing is right for the political branches to draft a coherent set of rules, they write:

“The goal…should be to replace what Judge Hogan called ‘procedures drawn up by the court, and principally [by] myself…in a new venue that has been untested’ with one that carries the legislature’s stamp and the president’s signature, and that answers some of the hard policy questions our political institutions have punted to the courts.

“The courts’ job, in such a world, would be to adjudicate detainee cases, rather than to write conflicting rules that they then have to apply.”

You can read more in Gavel Grab about decisions governing detainee policy.

Full post as published by The Gavel on December 22, 2009 (boomark / email).