I spent the majority of my time last week up on Capitol Hill attending a seminar on intelligence operations and Congress. It was a fascinating seminar put on by the people at the Georgetown Institute. These are great courses (and I encourage any policy governmental employees to check them out) because they get members of Congress as well as senior staff, lobbyists, and other people “on the hill” who work there every day to provide presentations and background briefings. It provides a great condense “insight” into an issue. While the issue last week was supposed to be Intelligence budgeting and larger broad questions - as a former detainee policy director I was taken aback by the routine discussion about Detainees at Guantanamo and interrogation. All of the discussions essentially come to this question - what’s next for Guantanamo?

The concern about GTMO on Capitol Hill is not idle curiosity I presume. I was a bit taken back by many whom I would consider “deeply on the other side of the isle,” finally making the realization that the ruling by the Supreme Court could result in detainees successfully petitioning the Courts for their freedom, and the possibility that other Constitutional protections beyond Habeas may have inured to them during their detention in Guantanamo as a result of the ruling. Without question, the Supreme Court’s ruling in Boumedienne will have far-reaching implications.

The GTMO question however is really two problems - what happens to the people who are already at GTMO, and what will happen going forward in the Global War on Terrorism. The first problem will be solved before the General Election. The second problem - unfortunately - will have to be solved by the next President.

Let me begin by saying I have no particular insights or information about how the federal court will handle all of these cases. However, it appears obvious to me that the DC District Court has decided to expeditiously handle the habeas petitions (as it should). The vast majority of cases have been consolidated with one judge - Judge Hogan. Judge Hogan ordered counsel (the Justice Department and the defendant counsel) to provide status as to their cases by July 14, 2008 (about two weeks ago). The purpose of the order, I presume, was to get a sense of just how to proceed in the habeas corpus proceedings. I also gathered from reading his order that Judge Hogan is looking to proceed as expeditiously as possible.

I also presume that the status results will essentially say this - the government still wants the individual detained and was lawfully detained under the AUMF; defendants arguing they were not subject to the AUMF and/or their determination of enemy combatant was unlawful and factually in error, and thus, demand immediate habeas relief and release. With 270+ cases essentially log-jamming - it will be a challenge for the court to sort out the cases in a logical way.

I believe that the court will begin having Habeas hearings by late August or early September. The other detainee cases moved swiftly after the Supreme Court’s ruling - and I expect that the DC District Court is taking this very seriously and wants to move in a logical, but expeditious way. If I am correct, these hearings are likely to occur just after the two national conventions - and will undoubtedly galvanize many Americans as the first of the “worst of the worst” come before courts for their hearings on habeas. While cameras are not allowed in federal courts, it is undoubtedly to be of national interest on how the court rules (something I will get to in a minute in more detail). With potentially 270+ cases for the court to decide, and potential intertwining facts between detainees, it will be quite a complex process to expeditiously hear all of the cases - however - it is clear to me that such a task is exactly what Judge Hogan is seeking to do. The Chief Judge for the DC District (Judge Royce Lamberth) said in a statement that, “guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful.”

The Attorney General was up on the hill a couple of weeks ago basically telling Congress - DO SOMETHING! Attorney General Michael Mukasey called on Congress to craft legislation that would dictate the form of Guantanamo Bay cases in federal court, setting ground rules for evidence, and the extent to which detainees may participate in the proceedings, and the judiciary’s authority to order their release.

Mukasey said the legislation should include a statement of the executive’s right to detain, indefinitely, “those who have engaged in hostilities or purposefully supported al-Qaida, the Taliban, and associated organization.” The Bush administration has long asserted this principle, but its foundation has been buffeted by one legal challenge after the next.

Mukasey said Congress should bar federal judges from ordering the release of detainees into the United States, even if they prevail in their habeas cases. And in the context of the court proceedings, the judges should not be permitted to order the government to bring detainees into the United States to participate, Mukasey said, adding that a video link would be “remote and safe.”

Nor should soldiers be required “to leave the front lines” to testify as witnesses or to create arrest reports on the battlefield, like law enforcement officers in the United States, with later court hearings in mind, he said. “Affidavits, prepared after battlefield activities have ceased, should be enough.” Mukasey said.

Mukasey said the habeas proceedings should not delay the trials of detainees charged with war crimes at the naval base. So far, 20 detainees have been charged in the military commissions.

Mukasey also urged Congress to restrict discovery in the habeas proceedings, giving deference to the government’s interest in guarding national security secrets. The U.S. Court of Appeals for the D.C. Circuit is considering a case that could determine what kinds of evidence the government may withhold from detainees and their lawyers.

Finally, Mukasey argued that the legislation should also include a provision that gives the U.S. District Court for the District of Columbia exclusive jurisdiction to hear Guantanamo habeas cases, and it should require a coordinating judge on the court to handle all the common issues. While Judge Hogan has been given most of the cases Judge Richard Leon and Judge Emmet Sullivan opted out of the coordination.

I believe that the Attorney General was right to get Congress involved. Unfortunately, he seems to be the only one who thought this was a good idea (since the White House does not seem to be actively pursuing the Hill and getting them to act). Moreover, the reality of the Congressional calendar is - they’re out of time. While there are a few more days until the recess - it is unlikely there will be much done on detainee issues before the August recess. I cannot imagine that this will be ramrodded before the General Election. Thus, I suspect the Federal Courts have to proceed based on the rules they have now - essentially criminal federal procedure. I just don’t see Congress (particularly the Democrats in Congress) deciding to clarify the issue greatly. It is unfortunate but there is “too much political hay” to be made hanging the Administration out to dry on the detainee issue. Democrats want this to be ugly - and they may get more than wish for…

In my discussions with staffers and other people on the Hill, Congress has little sense of what is the right course of action is on the GTMO issue. While Sen. Levin continues to actively investigate detainee issues, the reality is the “really big show” is going to come after Federal Courts start gaveling detainees “free” on habeas. Moreover, the government may be placed in a difficult situation - either reveal as required by the courts the information they used to determine if the detainee was an enemy combatant (and in some cases expose the Administration to embarrassment regarding harsh interrogation techniques) - or be unable to make their case for detention, and thus, have the detainee go free as a result. When the court starts making decisions in favor of detainees (either on factual grounds or because the Government cannot sufficiently make its case) - Congress (especially Democrats who have been waiting to nail the Administration on this issue) is going to pinwheel into the ceiling. On top of the embarrassment of findings of cruel and mistreatment of detainees in the context of habeas hearings - I can’t imagine Democrats in Congress would pass up the opportunity to have more hearings on the entire framework of the detainee issue, demanding to know why the “worst of the worst” are being “let go” by Federal courts.

… in short - it’s going to be a serious mess (potentially) in the fall. But I do think it will be all over (one way or another) by Election Day. I suppose “that’s the good news.”

While a lot of political misfortune and turmoil is going to come as a result of the habeas cases - that’s not the really long term problem. Courts can handle the habeas cases, and the Republic will survive. The judicial review of the detainees is perhaps long-overdue given how the Administration chose to construct the legal framework. However, these decisions will have long-term implications in the GWOT - implications that neither the Congress nor the courts have yet to fully consider.

The reality is - the United States needs a place like GTMO for the long-term detention of some members of Al Qaida and affiliated terrorist organizations. I doubt very much the American people want to see the 9-11 mastermind, Khalid Sheik Mohammed (KSM), go free. I also doubt much that the American people want to see the other 9-11 conspirators, and the other “high value” detainees go free. I do not believe their habeas petitions will be successful. However, I am also skeptical as to the likelihood that the Government will prevail in a military commissions case against them (if they all wind up being subject to it). So, the reality for both Congress and the public is that the United States is going to detainee some pretty significant people in the war on terrorism - probably the rest of their lives (in all likelihood) and will need a facility and a legal framework that supports that detention.

The United States is also engaged in the GWOT around the world - and that fight is not rhetorical. Our forces are “bringing the fight to the enemy” in many parts of the world. The reality is - terrorists are going to be “scooped up” as a part of our military and law enforcement activities. What is to be done with them if they are not going to go to GTMO? The Boumedienne case I believe casts significant doubts on bringing them to the US without having to provide them some sort of “due process” (most likely Habeas Corpus hearings). While Habeas Corpus hearings are not necessarily impossible to meet (let’s face it - the majority of habeas petitions in Court do not result in the incarcerated being released) - it is not something that the United States has set up a good framework for doing for people who are not incarcerated as a result of a criminal process. The habeas hearings in the fall may be the first indicators of all the problems and pitfalls of attempting to apply criminal standards to battlefield captures.

Moreover, it’s clear they won’t go to GTMO. Both Presidential candidates have sworn to close the place - McCain wanting to put one hand on the Bible on the platform of the Inauguration - and then place it on a button that nukes Guantanamo - making his first act to close GTMO and send them all to Leavenworth. (YouTube is a real pain when you’re running for office - see http://youtube.com/watch?v=X5Co7×3A12s.) I can’t say that I blame McCain (or Obama) for wanting to just end the place. As executed, GTMO has been a public policy disaster, and has unraveled everything that the Administration wanted to protect as its Presidential power in the GWOT.

Reality is - however - we need a place like GTMO. Otherwise, we’ll be forced to hold detainees away from US shores - in temporary holding facilities. What got Congress most upset in the last 7 years was the lack of oversight over the big facilities - imagine their frustration if the US has to set up a temporary holding facility in every region it is operating. In short - Congress isn’t thinking this through very well.

If GTMO is to close - and the process we are looking at is subjecting detainees to some sort of habeas review - then the Congress needs to act and help define what that looks like. We can set up “terror courts” to hear the detainee cases - provide them high clearances and make the rules acceptable to protect both national security, but ensure the detainees get their “habeas review” as the Supreme Court requires.

I suspect in the next administration - we will have to build “a new GTMO” - somewhere in the US. The detainees who are judged to be “free” as a result of the habeas hearings will ultimately be released to their home government (subject to our treaty obligations under international law). The remaining detainees will be brought to the US - probably NOT Leavenworth (despite the hype - we need Leavenworth as a US detention barracks for soldiers).

The new Administration will have to deal with this issue - because - I find it highly unlikely al Qaida will surrender and end the conflict between now and January 20th, 2009.

Possibly Related Posts:

• Return of Pirates: It’s time to enforce our blue water powers…
• Dear President Elect Obama - Your Guantanamo Bay idea is a lousy one…
• Obama’s Latest Endorsement - al Qaida. An Obama-Bin Laden ticket?
• What Obama’s Policies mean for America: Defense Policy
• Leaving Iraq - Will Bush really pull troops out?