First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.
Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review.
We should not be forced to choose between continuing to hold a dangerous detainee and jeopardizing the intelligence sources and methods that Americans have risked their lives to obtain, and which our enemies may then render useless.
Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.
Lawyers are not protecting us overseas after all. Here at home a judge has ruled for the release of 5 Gitmo detainees. Andrew McCarthy, NRO:
All that said, though, Judge Leon concluded that “[t]o rest [combatant detention] on so thin a reed would be inconsistent with this court’s obligation.” That is puzzling. There is nothing in the training of a judge that makes him an expert in military matters. In our system of divided government, the question of who is an enemy combatant should be committed to the executive brach — specifically, to the military professionals waging the war. If there is any evidence supporting the military's wartime decision to detain (and, to reiterate, Judge Leon said there was sufficient evidence to hold these men for intelligence purposes), the court should defer to the military judgment.
In any event, the Times reports that Leon "directed that the five men be released 'forthwith' and urged the government not to appeal." The government is considering its appellate options. Meanwhile, one can only hope that either Algeria or some other country is willing to take these guys. Otherwise, we are in the same fix presented by the Uighur case (which will be argued on appeal next week): facing the prospect of jihadists being released into the United States.
The election is over--Congress has no excuse not to act and exercise its responsibilities--one of the federal government's primary charges is to protect this country and its citizens. And to concentrate their minds, I imagine they still have those gas masks under their seats.
P.S. If you think the administration is crying wolf, note that the NY Times, no friend of the administration, had a story yesterday on the NYPD's push for greater latitude on surveillance:
An effort by the New York Police Department to get broader latitude to eavesdrop on terrorism suspects has run into sharp resistance from the Justice Department in a bitter struggle that has left the police commissioner and the attorney general accusing each other of putting the public at risk.
The Police Department, with the largest municipal counterterrorism operation in the country, wants the Justice Department and the Federal Bureau of Investigation to loosen their approach to the federal law that governs electronic surveillance. But federal officials have refused to relax the standards, and have said requests submitted by the department could actually jeopardize surveillance efforts by casting doubt on their legality.
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