Second, how will the courts handle classified information in these unprecedented court proceedings? A lot of the information supporting the detention of enemy combatants held at Guantanamo Bay is drawn from highly classified and sensitive intelligence. Some of it was obtained by exposing American military and intelligence personnel to extraordinary dangers. And we know from bitter experience that terrorists adjust their tactics in response to what they learn about our intelligence-gathering methods. For the sake of national security, we cannot turn habeas corpus proceedings into a smorgasbord of classified information for our enemies. We need to devise rules for the habeas corpus cases that will provide for the necessary protection of national security information.
And third, what are the procedural rules that will govern these court proceedings? Does Boumediene require that each detainee receive a full-dress trial, with live testimony by the detainee here in Washington ? Will a detainee be able to subpoena a soldier to return from combat duty in Afghanistan or Iraq to testify? Should one detainee be allowed to call other detainees as witnesses? Or compel the United States to reveal its intelligence sources in order to establish the admissibility of critical evidence?
One could say, I suppose, that these questions should be left to the courts, to resolve through litigation. But I do not think that is the most prudent course. Unless Congress acts, the lower federal courts will determine the specific procedural rules that will govern the more than 200 cases that are now pending. With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty. The federal court in the District of Columbia is already working on some of these issues, and I believe that court should be commended for the preliminary steps it has taken thus far to provide for the fair, efficient, and prompt adjudication of these cases.
But it hardly takes a pessimist to expect that, without guidance from the Congress, different judges even on the same court will disagree about how the difficult questions left open by Boumediene should be answered. Such disagreement will, in turn, lead to a long period of protracted litigation--with the possibility of different procedures being used in different cases--until, perhaps, the Supreme Court intervenes yet again.
But uncertainty is not the only, or even the main, reason these issues should not be left to the courts alone to resolve. There is also the question of which branches of government are best suited to resolve them. I am a former federal judge; I appreciate fully the institutional strengths of our courts, and the critical role the federal judiciary plays in our system of government. But I am also acutely aware of the judiciary's limitations. Judges decide particular cases, and they are limited to the evidence and the legal arguments presented in those cases. They have no independent way, or indeed authority, to find facts on their own, and they are generally limited by the parties' presentations of background information and expert testimony.
By contrast, Congress and the Executive Branch are affirmatively charged by our Constitution with protecting national security, are expert in such matters, and are in the best position to weigh the difficult policy choices that are posed by these issues. Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution, but it is our elected leaders who have the responsibility for making policy choices in the first instance.
So today, I am urging Congress to act - to resolve the difficult questions left open by the Supreme Court. I am urging Congress to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way and, as the Court itself urged, in a practical way. I believe that there are several principles that should guide such legislation.
First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States . There are more than 200 detainees remaining at Guantanamo Bay , and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay , which is both remote and safe.