Another Post editorial.
Judicial Wake-Up Call
Wednesday, February 2, 2005; Page A22
ONLY TWO WEEKS ago U.S. District Judge Richard J. Leon threw out lawsuits by detainees at Guantanamo Bay, Cuba, ruling that there was "no viable legal theory" under which he could intervene in the military's handling of detentions at the base. This week Judge Joyce Hens Green of the same court refused to dismiss a much larger group of cases presenting substantially the same issues. Not only can foreign detainees bring cases alleging violations of the Geneva Conventions, she ruled, but they have due process rights under the Fifth Amendment to the Constitution as well -- rights the administration is violating with tribunals to determine their status that both deny detainees access to classified evidence and deny them lawyers to confront the evidence they can't see.
That two serious judges could produce such irreconcilable opinions points to the muddled state of law governing Guantanamo since the Supreme Court held last year that federal courts have jurisdiction to consider detainee challenges. The court ruled that judges can hear claims that detainees' rights have been violated, but it didn't say whether those detainees have any judicially enforceable rights to violate. Only the Supreme Court can resolve the ambiguity it created.
Still, Judge Green's opinion ought to be a wake-up call to the Bush administration, which has so far insisted that it alone will design the review processes for detentions. Judge Green's ruling that Fifth Amendment rights apply in Guantanamo is a plausible reading of the high court's tea leaves. If the administration continues to design this system in dialogue only with the courts, it is as likely that something like Judge Green's analysis will become law as it is that the courts will give the executive branch the free hand it seeks.
The executive's hands should not be free, but Congress, not the judiciary, is the ideal institution to restrain them. Congress is far better positioned than the courts to create procedures that would balance the competing interests of fairness and military necessity. And a carefully constructed legislative scheme -- even one that proved challenging from a civil liberties perspective -- would probably receive far more deference from the courts than the unilateral moves of the administration that brought the United States to Abu Ghraib. At every step since the war on terrorism began, the administration has overestimated the strength of its legal positions. Before charging ahead as though Judge Green's opinion did not exist, President Bush should consider the legal security he could buy for his detention policies by seeking legislative authorization, guidance and restraint. |
