Obama Law

An Overabundance of Caution
An email conversation about the news of the day.
Dec. 9 2008 4:10 PM

Obama Law

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Some responses to the excellent posts by all of you:

Emily, you (and Marty Lederman) make a very good point in saying that we should give the post-Boumediene habeas litigation that is already under way a chance to work before we resort to special measures. I wish I had taken that into account before sending my post yesterday.

In fact, I spoke later on Monday with a person I cannot name who has deep insights into how the D.C. federal courts are handling—and are likely to handle—those cases. My source's view was that in principle, the handling of these detainees involves issues of high legislative policy that should be decided by Congress. But, the source added, given the mess that Bush has made and the Supreme Court's rulings, and given the healthy level of both talent and ideological balance on the D.C. Circuit and district courts, Obama should let the habeas litigation play out before making any big legislative proposals.

I suggested in my post yesterday that Obama should hold off for a different reason: to let a bipartisan, blue-ribbon commission sort out the evidence on who these detainees are before deciding what would be the best system for deciding their fates. Maybe the courts will do that well enough to obviate any need for a commission.

But maybe they won't, because maybe existing law won't let them. I have been told by well-informed sympathizers with the administration that the rules—and vast uncertainty about what the rules are—in the habeas litigation might make it impossible for the government to put before the courts its best evidence that particular detainees are terrorists or would-be terrorists.

The main problem may be treatment of highly sensitive classified evidence, including some that was provided by foreign intelligence services to the CIA only on the condition that the agency won't share them with anyone else.

The government's problem is that if it wants the judges to consider such classified evidence, it runs a risk that the judges will require disclosure not only to defense counsel (who have been known to leak, if not in this litigation) but also, perhaps, to the detainees. I have heard it suggested that the CIA is unwilling to identify some of its sources and methods even to the Justice Department, for fear that the habeas process will 1) violate the CIA's promises to its sources and 2) risk leaking the information to the public or to enemies.

Consider the Justice Department's decision to withdraw its claim in Judge Leon's court that the Boumediene group of Algerian-born Bosnian citizens were plotting to blow up the U.S. Embassy in Bosnia. Did Justice give up on that claim because it had no real evidence? Or because it was unwilling, for valid national-security reasons, to disclose that evidence to the defense? We don't know. Nor, I suspect, does Judge Leon, who had no choice under the circumstances but to rule for these detainees.

In my view, the best way to resolve these problems would be legislation that would specify that the Justice Department may show its classified evidence to the judges, with no risk that the judges will share the evidence with the defense over the government's objections. If the judges then choose to disregard the evidence because of lack of adversarial testing or related constitutional problems, so be it. At least the judges' decisions would be fully informed. And the habeas litigation may well end up pointing to the conclusion that the least-bad approach is to establish a new national-security court with clear rules on how to handle classified evidence and other knotty problems that are especially pressing in international terrorism cases.

As for Emily's concern that Congress would make a mess if it created such a court, remember that one model—the FISA court—was reviled when created in 1978, and for many years thereafter by civil libertarians, as a cover for sham proceedings that provided no protection for civil liberties and would open the floodgates to all manner of abuses. And remember that, as we have learned in recent years, the opposite turned out to be the case. I am aware of no evidence of any abuses under the aegis of the FISA court. And as documented by the 9/11 commission and others, the FISA rules for protecting civil liberties, and the understandable overabundance of caution that those rules inculcated in the DoJ, FBI, CIA, and NSA, are among the reasons that the 9/11 suicide hijackers escaped detection.

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