The Discerning Texan

Andy McCarthy correctly points up that is is now up to the People and its Congress to take our government back. He concludes:

Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court considering detention is entitled to rely on any information developed in other proceedings — including on the fact that a grand jury has found probable cause that the defendant committed the alleged crime.

Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been upheld in the face of all manner of constitutional challenge.

Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.

If Congress were to enact such a law, patterned on the pretrial detention statute but properly imposing greater burdens on petitioners who are alleged to be wartime enemies rather than mere criminals, the result would be that only the most egregious miscarriage of justice would result in a finding that a detainee was not an enemy combatant. That is as it should be — especially given that (a) alien enemy combatants have never before been afforded such rights and (b) only four years ago, in Hamdi v. Rumsfeld, the Supreme Court itself said judicial deference to the commander-in-chief was due even if an alleged combatant was an American citizen.

We must, naturally, anticipate that the federal courts will find the occasional, egregious miscarriage of justice. Thus Congress should also provide for what would happen to such a combatant. In short, he should be detained until he can be either repatriated to his native country or sent to a country of our choosing which is willing to receive him; under no circumstances should he be released into the United States.

On that score, we must be mindful of an oft-overlooked fact: Unlike American citizens who file habeas-corpus claims challenging their detention after conviction in civilian cases, the alien enemy combatants making war on us are not relying solely — or even principally — on legal proceedings. To the contrary, they have governments aggressively pursuing their release by diplomatic means. That is why the detainee population at Gitmo is down to about 270 when once it was over 800.

Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with all the constitutional protections they would gladly give our enemies if they thought voters would let them get away with it.

We shouldn’t let them get away with it.

Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens, Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be challenged to tell us where he or she stands on Boumediene and its aftermath.

Read the whole thing.