No Place to Write Detention Policy

No Place to Write Detention Policy. By Benjamin Wittes, and Jack Goldsmith
Brookings, December 22, 2009

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court's intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.

Many commentators have complained about this state of affairs and the contradictory and incoherent body of law it is producing and have urged the political branches to enact legislation to create a uniform and democratically legitimate detention policy.

Now a more important voice has joined the call for legislative reform.

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."

Congress has avoided these issues for a number of reasons. Initially, it was a combination of the Bush administration's failure to seek congressional help and lawmakers' natural inclination to avoid taking responsibility for hard decisions for which they might later be held accountable. More recently, the Obama administration has been loath to spend any more political capital than necessary in cleaning up what it views as its predecessor's messes. Instead of dealing with detention policy proactively, it has largely adopted the Bush approach of grinding out detention policy in the courts. Ironically, the president's political base seems to prefer his adoption of the Bush approach -- an approach liberals previously decried -- to any effort to write detention rules and limitations into statutory law.

As Judge Hogan made clear, this is a bad way to craft policy. It generates uncertainty about the lawful parameters of detentions, ensures longer adjudication times and lessens accountability for difficult decisions.

The Guantanamo closure process and the appropriations process for the new terrorist detention facility in Illinois offer a perfect opportunity to correct this long-festering problem. The administration will have to work with Congress, if only to permit Obama to move detainees to the new site. Yet if legislation stops there, the political branches can congratulate themselves only on moving the location of terrorist detention and not on strengthening and clarifying detention policy.

By contrast, if Congress and the administration were inclined to perform their constitutional duties, they could draw on eight years of judicial decisions, legal briefs and scholarship to craft clear, stable rules. There are myriad issues for a responsible Congress to address, but at a minimum it should offer a clear definition of who can be detained, a coherent set of evidentiary and procedural rules to determine who fits the definition of an enemy, and guidance concerning the scope of the government's obligation to disclose evidence to detainees' lawyers.

The goal, simply put, 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.

'He Just Does What He Thinks Is Right'

'He Just Does What He Thinks Is Right'. By Peggy Noonan
WSJ, Dec 26, 2009

Cannon to the left of him, cannon to the right of him, cannon in front of him volley and thunder. That's our president's position on the political battlefield now, taking it from all sides. And the odd thing, the unique thing in terms of modern political history, is that no one really defends him, no one holds high his flag. When was the last time you put on the radio or TV and heard someone say "Open line Friday—we're talking about what it is we like best about Barack Obama!" When did you last see a cable talking head say, "The greatness of this man is as obvious as it is unnoticed"?

Is the left out there on the Internet and the airwaves talking about him? Oh, yes. They're calling him a disappointment, a sellout, a DINO—Democratic in name only. He sold out on single-payer health insurance, and then the public option. He'll sell you out on your issue too.

The pundits and columnists, dreadful people that they are, call him cold, weak, aloof, arrogant, entitled.

So let's denounce him again.

Wait—it's Christmas. Let's not. There are people who deeply admire the president, who work with him and believe he's doing right. This week, this column is their forum. They speak not for attribution to avoid the charge of suckupism.
***

We start with a note from an accomplished young man who worked with Mr. Obama on the campaign and in the White House. He reminded me this week of a conversation we'd had shortly before the president's inauguration. "I remember you asked me back in January if I loved my guy. And in light of all that's happened in this first year, I still do. Even more so. And I also have a strong sense—based not just on polls but on a lot of folks I've talked to who don't always pay attention to politics—that he DOES have that base of people who still love him too.

"It's hard to detect, because the part of the 'base' that's represented on cable and on blogs is so vocal (and by vocal I mean shrill), but it's there. I also read it in the letters he gets. Some of them are amazingly poignant and appreciative of what he's done and what he's doing. Some of them are tough—very tough—but still respectful and hopeful that he's doing the right thing. Even if they're unsure right now, they want him to succeed. . ."

He sees them as a kind of quiet majority, or at least quiet-but-large-group-within-the-electorate.

"[T]hey're not going to run out and defend him on the blogs or start screaming back at his detractors, because they know its fruitless and they're sick of all that Washington nonsense anyway." They want him to cut through the mess and "get things done for them. And they're willing to give him that chance. Still."

The president, he suggested, tends toward the long view and the broad view. "Here's what I know about him. He still has this amazing ability to tune out the noise from Washington, read the letters from the people, listen to their concerns, listen to his advisors, hear both sides, absorb all the information, and make the decision that he honestly feels is right for the country."

He does this "without worrying too much about the polls, without worrying too much about being a one-term president. He just does what he thinks is right. And that consumes a lot of his time. Most of it, in fact."

He is aware that Obama is "perceived as alternately too weak and too Chicago, too left and too right, too willing to compromise and too beholden to his majority, too detached and too much meddling in too many things." The administration needs "to do better in resetting the story and telling it the way we want it told." But "the fractured, petty, biased-towards-the-sensational media today makes that more difficult than ever before."

He knows now, he said, "how the Bushes and the Clintons must have felt," and wonders "if that just happens to all White Houses. I don't know. But I do know that we have some very big, very unique problems right now. And we live in a very cynical . . . time where it's difficult to maintain the benefit of the doubt as you're navigating through the storm." They're giving it their best. "Lots of good people are trying. We won't fix it all, but I think we'll succeed (and think that in some cases, we already have!) at fixing a good deal."
***

Another staffer spoke warmly of President Obama's warmth. "He's interested in who you are, and it's not manufactured." He sometimes finds himself briefing the president before events. "I know he's just come out of a meeting on Afghanistan" and maybe the next meeting isn't as important, but he wants to know who they are and where they're from and has a gift for "making them feel important."

"He's a young president, young in terms of youthful." Sometimes people come in to meet him and find "they came for a photo and he gives them a game" of pick-up basketball on the White House court. "Those are the things from a human perspective that make him so accessible. Accessible is the right word. He's emotionally available."

He is appreciative of his staff's efforts. "When you're working hard for your country and you know [he cares] it is huge." How does he show his thanks? "It's a little like a basketball game—'Thanks for that, I know what you did.' It's not a note or a pat or a call, it's a guy-to-guy thank you, 'That's cool, that's good.' You think, 'My coach got that I worked my ass off.'"

"As a person he is just an incredible human being who you can't help but love."

A third Obama staffer spoke of last week's senior staff dinner, at which the president went around the table and told each one individually "what they meant to him, and thanked the spouses for putting up with what they have to put up with." He marks birthdays by marching in with cakes. He'll walk around the White House, pop into offices and tease people for putting their feet on the desk. "Sometimes he puts his feet on the desk." He's concerned about much, but largely unruffled. "He's not taken aback by the challenges he has. He seems more focused than he's ever been. He's like Michael Jordan in that at the big moments everything slows down for him." He's good in the crunch.
***

I end with a story told to me by an old Reagan hand who, with another former Reagan administration official, was being given a private tour of the White House by Michelle Obama. This was last summer. Mrs. Obama led the two through the halls, and then they stopped by the Lincoln bedroom. They stood in the doorway, and then took a step inside, but went no deeper. Everything looked the same, but something was different. "We don't allow guests to stay in this room anymore," Mrs. Obama explained. She spoke of it as a place of reverence. They keep it apart, it's not for overnights.

Unspoken, but clearly understood by the Reagan hands, was: This is where he signed the Emancipation Proclamation. A true copy of it is here, on the desk. He signed it: "Abraham Lincoln." The Reagan hands were impressed and moved. It is fitting and right that the Lincoln bedroom be held apart. It always should have been. Good, they thought. Good.