In 2008, the Supreme Court ruled that detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, had the right to challenge their detentions in federal court. The ruling was a victory for the rule of law, guaranteeing independent review of what had been the executive’s unchecked ability to hold suspects indefinitely.
But the broad pronouncement left many questions unanswered. The justices, for example, offered no specifics on how the lower courts should handle these cases. Congress and the White House have since failed to fill in the blanks. As a result, different judges on the U.S. District Court for the District of Columbia have often reached radically different conclusions on which standards to apply and which approaches to take on everything from the admissibility of evidence to the basis for determining whether a detainee was part of a terrorist organization.
Early on, this hodgepodge approach often benefited detainees, a significant number of whom prevailed in arguing that they should never have been picked up in the first place. Then the cases began to get a second look from the D.C. federal appeals court, which often reversed the lower court rulings and established standards more favorable to the government. The precipitous seesawing has not been pretty — but it has not been the fault of the judges, who were forced to make up the law as they went along because of a lack of leadership from the political branches.
Sen. Lindsey O. Graham, R-S.C., should be applauded for trying to fill that void. Mr. Graham introduced a bill this month that is by no means a perfect offering but deserves to be taken seriously — especially by the White House. The Graham bill includes important protections for detainees, including a reaffirmation that testimony obtained by torture or coercion may not be used in court. Detainees may retain lawyers, and they are entitled to receive some exculpatory information in the government’s possession.
Another provision clarifies a matter that has flummoxed the courts: how to assess a detainee’s argument that he has severed ties with al-Qaida or the Taliban. The Graham bill allows judges to assume that an association is ongoing but gives the detainee the opportunity to rebut that presumption by showing that he took “affirmative action to withdraw from the organization in question prior to . . . capture.” The bill importantly reaffirms that the country is involved in a “continuing armed conflict with al-Qaida, the Taliban and associated forces,” giving the president the authority to detain unlawful enemy combatants in the future.
Mr. Graham, unfortunately, tilts the scales too much in the government’s favor. The bill calls for the executive branch to prove that it has “probable cause” to believe the suspect has ties to al-Qaida or associated forces. This is less exacting than “preponderance of the evidence,” a standard the D.C. trial court has adopted and which Mr. Graham embraced last year when he introduced the original version of this bill. He had it right the first time; the government should be put to a tougher test when it seeks to hold a person indefinitely without charge.