Judicial Alternatives to Guantanamo Bay

Fadi al-Maqaleh disappeared from his family's home in Sana'a, Yemen, in 2002. His relatives did not learn of his whereabouts until a year later, when they received a letter informing them that he was being held as an enemy combatant in a U.S. military prison at Bagram Airfield in Afghanistan. U.S. officials say al-Maqaleh, now 25, was taken into custody in southern Afghanistan, but his lawyer insists he was neither in Afghanistan nor captured by U.S. military forces. She believes he may have been flown to Abu Ghraib in Iraq before reaching Bagram, but, because she has never met her client, she can't ask him about it herself. Beyond those skeletal facts, al-Maqaleh, like most of the other 630 prisoners at Bagram, is a shadow.

"The government's argument is that [Bagram] is just a battlefield detention center; it's really not. It's just like Guantánamo—someplace where you bring people to interrogate them outside of the law," says the lawyer, Tina Foster, of the International Justice Network.

The way the U.S. government handles suspects in the war on terror is changing, and with it, perhaps, the fate of al-Maqaleh and hundreds of others like him. The Supreme Court's June 12 rulings in Boumediene v. Bush and Muaf v. Geren affirmed the constitutional rights of those held at Guantánamo Bay and U.S. citizens in Iraq to challenge their detention in U.S. civilian courts. Since those rulings, lawyers for detainees have submitted about 200 habeas petitions in D.C. district court, seeking a better venue for their clients than the system the Bush administration set up at Gitmo. And on Monday, the first civilian review of a Guantánamo case delivered yet another blow to the Bush team, overturning the Pentagon's assessment of one prisoner and ordering that he be either charged, transferred or released.

The rulings were a defeat for the Bush administration, which had stripped federal courts of jurisdiction over detainees' efforts to challenge their imprisonment in the Military Commissions Act of 2006. The president expressed his disagreement with the court's decisions, and lawyers for the administration are weighing their options, hoping to find a way to continue to keep the detainees out of federal court. But they are mindful of the fact that Boumediene could well establish a precedent that may affect prisoners at Bagram and in other facilities around the world where the government is holding enemy combatants. "[Our] interpretation that this decision applied only to those detainees at Guantánamo will not stop challenges from elsewhere. We would disagree with them, I think the court would disagree with them, but as we're learning, the court can be unpredictable," said one White House official, who requested anonymity when discussing sensitive legal matters.

Both John McCain and Barack Obama have made it clear that the military commissions at Gitmo will not survive long past the inaugural ceremonies on Jan. 20, 2009. But what then? Neither candidate has yet clarified precisely what sort of system they would put in the place of the commissions. Meanwhile, critics are keeping a wary eye on how the administration proceeds in places such as Bagram.

A small group of national security buffs is seeking to fill the vacuum. They come from both ends of the ideological spectrum and disagree avidly on many of the details. But they are pushing plans they believe will help balance civil liberties and security, and pave the way toward a post-Gitmo system of handling suspects in the war on terror. Among the ideas being floated:

THE STRANGE BEDFELLOWS COURT:  Neal Katyal is a former legal adviser to the Clinton administration, served as co-counsel to Al Gore in Bush v. Gore and was lead counsel in Hamdan v. Rumsfeld, a Supreme Court case that found that the Gitmo detention system violated the U.S. Military Code and the Geneva Conventions. Jack Goldsmith is a conservative who headed up the Office of Legal Counsel in the Bush Justice Department and resigned after concluding, as he wrote in his book "The Terror Presidency," that "some of our most important counterterrorism policies rested on severely damaged legal foundations." The two have teamed up to propose a national security court that would operate independently of the civilian judicial system, but would be staffed by federal judges who could specialize in the subject matter and hear arguments from a pool of lawyers armed with security clearances and steeped in counterterrorism laws. First unveiled in a joint 2007 New York Times op-ed, the plan argues for treating citizens and non-citizens identically. But detainees would not enjoy the same menu of rights afforded the average criminal suspect. They might not be allowed to meet with their lawyers during interrogations, and press and public access to the proceedings would be restricted.

THE 'INVOLUNTARY COMMITMENT'-PLUS COURT:  Brookings Institution legal fellow Ben Wittes just published "Law and the Long War," a book that advocates a special federal court to replace Guantanamo's review procedures, based on the premise that there is plenty of precedent for preventive detention. Potentially violent patients with mental illness can be legally committed without being convicted of any crime, for example. Lawyers would be cleared to see pertinent classified information, but rules for entering evidence would be more lenient than in civilian court. Chain-of-custody requirements would be lax, for example, so cases wouldn't get thrown out over quibbling about whether or not detainees were alerted to their right to remain silent. Only foreigners would be tried in this court; U.S. citizens and residents would be routed through standard civilian courts.

MILITARY COMMISSIONS, VERSION 3.0: A law professor at the U.S. Coast Guard Academy, Glenn Sulmasy, who will wrap up a book on the national security court this summer, advocates a "natural evolution" of the current military commissions, incorporating civilian oversight and abolishing preventative detention. The president would appoint trained federal judges, while Justice Department prosecutors would argue for the government and military lawyers would represent detainees. Trials, to be held on military bases, would be closed to the public, but observers from the United Nations and nongovernmental organizations (NGOs) would be allowed. To whittle down the number of detainees eligible for trial, Sulmasy advocates renaming the War on Terror as the War on Al Qaeda. "We're not fighting Hamas. We have an identifiable enemy," he says.

THE LEGAL MELTING POT: In the system devised by conservative former federal prosecutor Andrew McCarthy, the prosecution and the defense would be drawn from a pool of lawyers at the Justice Department and in the military's Judge Advocate General's offices, while judges would be chosen by the chief justice of the Supreme Court. McCarthy's plan calls for all enemy combatants to be processed within one year of capture, regardless of where they were apprehended or held (U.S. citizens and legal residents would not be eligible). Trials would be similar to those conducted by military commissions but would bring in judges from the U.S. criminal system as a check on juries, which would be composed of five military officers. Before taking office last year, Attorney General Michael Mukasey wrote of his support for McCarthy's plan. The two men have a history; Mukasey was the judge on the famous case against the 1993 World Trade Center bombers that McCarthy helped to prosecute.

It is unclear whether any of these plans are politically viable. Human-rights groups are cool to the idea of any alternative to the federal court system, fearing the creation of extra layers of legal bureaucracy that could too easily fall into the same traps as the Bush team's approach. "To be anything close to fair, [the court] would start looking a whole lot like the existing criminal justice system," argues Human Rights Watch lawyer Jennifer Daskal. That argument has found favor with some Democratic leaders on Capitol Hill, who have expressed skepticism about any alternative that strays from the established military and civilian justice systems.

For their part, Republicans who voiced their disapproval of the Boumediene decision have yet to announce their plans, at least publicly. "Legislation is a possible route, but it may not be something that can be done," said the White House official. Sens. John McCain and Lindsey Graham have both expressed interest in new laws that would, as McCain put it, "narrow down some of the wide-open aspects" of the decision, but their Senate offices put to rest rumors that they might do so before the upcoming recess. All are mindful that the Democratic majority in both houses of Congress—and the fact that Sen. Arlen Specter, ranking Republican on the Senate Judiciary Committee, hailed the Boumediene ruling—complicate matters politically.

Barack Obama, though beloved by the human-rights crowd, recently offered a glimpse that his thinking may deviate from theirs. Speaking with NEWSWEEK at a press event last week, he proposed locking detainees up in military facilities within the United States "in the same way that we locked them up at Gitmo," but added that "some modicum of due process" would be essential. "Without giving full-blown rights to those who are being held, we can set up a system of due process," he said. "We don't have to treat these folks as U.S. citizens. We don't have to treat them in the same way that we would treat a criminal suspect in the U.S., but we should abide by the Geneva conventions."

How does all this upheaval affect al-Maqaleh and others in similar circumstances? His case had been placed on hold pending Boumediene; with that decision in hand, the district court will likely resume consideration of his habeas petition within weeks. The outcome will likely hinge on whether the judge sees Bagram as Guantánamo's equivalent or as a war-zone detention center. For detainees held without charge in places without due process, the resolution of that question cannot come soon enough.