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Punting the political football

- The Washington Times - Sunday, December 27, 2009

He is the epitome of the gentleman judge: measured, refined, studied, fair and even-handed. He has no hard edges, treats all litigants who come before him with respect, and is widely regarded as one of the finest judges in the federal judiciary.

He is Thomas F. Hogan. The former chief judge of the U.S. District Court for the District of Columbia, today he handles most habeas cases for detainees accused of being unlawful combatants or terrorists. Judge Hogan also sits on the secretive Foreign Intelligence Surveillance (FISA) court.

Off the bench, he loves to fly fish and cares deeply about our veterans. On the bench - and in his opinions - he refrains from engaging in law-making or expressing his political views.

So it was indeed noteworthy two weeks ago when Judge Hogan commented from the bench on the failure of Congress and the executive branch to enact legislation regarding detainee litigation.

Ruling in a Guantanamo Bay detainee's habeas case, he said, "It is unfortunate that the legislative branch of our government and the executive branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases." He noted that his fellow judges hearing detainee cases essentially created "different rules and procedures ... different rules of evidence ... [and] substantive law."

This has created chaos, not only for the litigants and between judges, but more importantly for the government which is attempting to keep dangerous terrorists detained for the duration of the conflict. The situation, Judge Hogan said, "highlights the need for a national legislative solution with the assistance of the executive."

In other words, we need a carefully drafted, legislatively authorized prolonged detention statute, signed by President Obama. Judge Hogan confirms what I and others from across the political spectrum have said for years. Those "others" include:

c Ben Wittes of the Brookings Institution, author of "Law and the Long War."

c Jack Goldsmith, a Harvard Law professor, former assistant attorney general and author of "The Terror Presidency."

c Matthew Waxman, a Columbia University law professor, former deputy assistant secretary of defense for detainee affairs, and author of "Detention As Targeting."

c Neal Katyal, the nation's current deputy solicitor general, lead counsel in Hamdan v. Rumsfeld, and former Georgetown University law professor.

c Andy McCarthy, prosecutor in the first World Trade Center bombing case and author of "Willful Blindness."

The status quo is simply unacceptable, and indeed dangerous.

Mr. Obama got it right back in May. Speaking at the National Archives, he embraced prolonged detention during wartime and called for the construction of a long-term legal framework for detainees, working with Congress to "develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

Then the president got cold feet. In September he announced he would not seek the very legislation he had deemed necessary.

It was a stunning display of political cowardice. Instead of leading on this issue - taking ownership of the problem and credit for the solution - Mr. Obama punted to the judiciary. In an editorial, The Washington Post excoriated the president for taking a "politically expedient and intellectually dishonest route." Brookings' Mr. Wittes called Mr. Obama's decision "a failure of leadership in the project of putting American law on a sound basis for a long term confrontation with terrorism."

Now the Obama administration wants to shutter the detention facility at Guantanamo Bay and import known terrorists into the United States. Before doing so, though, it has an obligation to seek a congressionally authorized long-term detention statute. If the president learned anything watching the ups and downs of detention law and policy from the Senate sidelines, it is that the courts have been active participants in detainee policy. Just ask Judge Hogan.

Relying on Congress' "Authorization for Use of Military Force" as the sole legal linchpin permitting prolonged detention is naive at best. Once those detainees hit terra firma in the United States, they will argue they are entitled to a host of other constitutional protections. Unless the administration and Congress establish clear legal guidelines, the courts will fill the void, exacerbating the chaos that currently exists.

The Obama administration assures the public that "they" won't release any detainees who are sent here to the United States. But by not acting, they virtually guarantee the courts will.

Unless we address the deficiencies of our existing legal framework, moving detainees here merely changes the ZIP code without fixing the problem.

That's why a distinguished federal judge in charge of detainee cases says the situation is dire. And that's why the administration must work with Congress to give the judiciary clear "rules of the road" regarding detainee matters. It's time they started doing their jobs, rather than keep passing the buck to Judge Hogan and the judicial system.

Charles "Cully" D. Stimson is a senior legal fellow at the Heritage Foundation and former deputy assistant secretary of defense for detainee affairs (2006-07).