While lots more gnashing of teeth is called for, I think it's extremely important that we push ahead with concrete, practical steps to prevent what could be disastrous fallout from the Supreme Court's catastrophic — albeit entirely foreseeable — ruling last week in Boumediene. That is what my article this morning is about.
Among many reprehensible aspects of their decision, Justice Kennedy and the Court's liberal bloc have dumped what will be hundreds of habeas corpus petitions by the enemy combatants on the federal district courts — with no guidance to judges about what rules should govern those proceedings. That is truly outrageous. Mind you, in civilian criminal prosecutions we do not let the judges make it up as they go along even though their expertise in such judicial proceedings is undeniable. Pretrial detention law is heavily regulated by Congress out of the well-founded fear that, absent such directives, soft judges would grant bail to dangerous criminals who should be incarcerated. Even though criminal defendants are presumed innocent, Congress has enacted presumptions in favor of pretrial detention for narcotics traffickers, violent criminals, and defendants whose ties to foreign jurisdictions make them extreme flight risks.
By comparison, (a) alien unlawful enemy combatants are more serious threats to public safety (indeed, to national security) than drug dealers and violent felons; (b) alien unlawful enemy combatants are also not defendants accused of crimes (they're hostile operatives captured in military operations overwhelming authorized by Congress following the mass-killing of nearly 3000 Americans on 9/11) and, therefore, they are not entitled in detention hearings to the constitutional presumption of innocence that applies in civilian prosecutions (by contrast, they do get the presumption of innocence if charged with war crimes); and (c) judges have no institutional competence in determining the status of enemy combatants, a war power the framers committed to the political branches.
Consequently, how could Congress possibly let federal judges concoct the rules and procedures for combatant detentions, ad hoc and out of whole cloth, when Congress rigorously regulates those same judges in ordinary criminal cases?
Thus, because there is probably not time at the moment for an ambitious project like a national security court (which nevertheless should be created at some point soon), I am this morning proposing a narrowly targeted detention procedure law for combatant cases, modeled on the federal pretrial detention statute (Section 3142 of Title 18, U.S. Code) but with modifications reflecting that we are dealing with enemy operatives and that, because we are at war, it would be utterly inappropriate to permit judges to require in-court testimony from our military and intelligence personnel.
A solution like this will no doubt face lots of opposition from hard Leftists, including Sen. Obama, who delight in the notion that the politically-insulated courts can vest our enemies with all sorts of protections that Leftist politicians dare not propose lest voters run them out of town. But that's all the more reason for pushing ahead with it and smoking them out so voters know exactly where they stand. And more significant than the politics: The combatants will be raining their habeas petitions on the district courts starting today (if they haven't started already). To protect Americans lives, it's vital for Congress and the administration to act now.