Judges Sound Off on Indefinite Detention, Urge Congress to Establish Guidelines

Three judges on the federal trial court hearing challenges brought by Guantanamo prisoners are calling on Congress and the Obama administration to enact a law to address one of the nation's most perplexing moral and legal dilemmas: When can the United States indefinitely detain terrorism suspects?

In lengthy interviews, Chief Judge Royce Lamberth and two of his colleagues on the U.S. District Court in Washington, D.C., said that deciding whether to release these prisoners raises unprecedented questions about security and liberty that need to be addressed by lawmakers. Their willingness to discuss their concerns in detail -- something federal judges rarely do in cases pending before them -- underscores the seriousness with which they view the lack of guidance from lawmakers.

"Judges aren't in the business of making law -- we interpret law," said Judge Reggie Walton, a George W. Bush appointee. "It should be Congress that decides a policy such as this that has a monumental impact on our society and makes a monumental impression on the world community."

Lamberth, a Reagan appointee, said the judges are struggling "to adapt legal principles to a whole new sphere of human existence that we've never witnessed in history as far as I know." The problem, he and the other judges say, is that the battle against terrorist groups doesn't fit the classic definition of war, with clearly defined enemies who would be released when the conflict was settled. Because U.S. law doesn't currently have any other option for captives held in a conflict without end, terrorism detainees could be locked up for life, the judges say.

The judges also say the risk in ordering a detainee to be released seems much greater than in past conflicts, because a return to the battlefield is not just a return to traditional frontlines but to possible attacks on civilians.

"How confident can I be that if I make the wrong choice that he won't be the one that blows up the Washington Monument or the Capitol?" Lamberth said.

Neither the Obama administration nor Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., whose support would be crucial to passing such a law, responded to requests for comment on the judges' plea. A Leahy aide indicated that congressional Democrats won't act unless the White House does. "The administration has not yet offered a proposal for a system of prolonged detention," the aide said.

The judges' position drew support from South Carolina Sen. Lindsey Graham, a Republican member of the Judiciary and Armed Services committees who said he'll introduce legislation in the spring to create a legal framework for terrorism detention.

"Our country needs to get a grip on this," said Graham, who for six years was an Air Force lawyer, advising pilots on the law of war during the first Gulf War. "The courts, God bless 'em, are trying to figure out questions that are outside of their lane."

The judges have been working on the Guantanamo cases since 2008, when the Supreme Court ruled that the detainees could contest their detention under the constitutional doctrine of habeas corpus, which protects individuals from unlawful imprisonment by the government. Their task: Determine if the government had enough evidence that a prisoner was involved in al-Qaida or Taliban-linked hostilities to validly detain him as an enemy fighter.

Without any laws or legal precedent to guide them, the judges have had to piece together their own standards for everything from what kinds of conduct constitute enemy activity to how to evaluate evidence obtained from harsh interrogations. Individually they've drawn on general principles of law and one another's work to come up with methods they believe are fair. But the judges say they want central guidelines to answer the many difficult questions these cases can raise, such as how to evaluate the unusual intelligence and interrogation evidence involved and how certain they should be of the truth before delivering a judgment.