• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • The Judiciary is No Place to Make National Security Decisions

    Politico reports today:

    Growing evidence that the Nigerian man charged with trying to blow up a commercial airliner as it landed in Detroit Friday spent time in Yemen and may have been fitted with customized, explosive-laden clothing there could complicate the U.S. government’s efforts to send home more than 80 Yemeni prisoners currently at Guantanamo Bay.

    Since Yemenis represent almost half of the roughly 200 remaining prisoners at Gitmo, new hurdles to their resettlement could spell more trouble for President Barack Obama’s plan to close the island prison while transferring a limited number of detainees to a prison in the U.S.

    Whatever links Umar Farouk Abdulmutallab may or may not have with Yemen, it is Congress and the Obama administration that is to blame for the lack of coherent rules and procedures for handling terrorism suspects. As Benjamin Wittes and Jack Goldsmith reported last week, key members of the judiciary are now pleading with the President and Congress to do their jobs:

    Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules — a person with as holistic and in-the-weeds an understanding of the issues as is possible.

    Last week, in ruling on the merits of a detainee’s case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that “go to the heart of our judicial system.”

    “It is unfortunate,” he said in an oral opinion from the bench, “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.” While allowing that the various judges were “working very hard and in good faith,” he lamented that “we have different rules and procedures being used by the judges,” as well as “different rules of evidence” and “a difference in substantive law.” For Judge Hogan, it all “highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned.”

    Judge Hogan is not the first to call out Congress and the President for their failure to craft necessary detainee legislation. Heritage Senior Legal Fellow Cully Stimson wrote this September:

    In a stunning display of political cowardice, the Obama administration has decided not to seek specific congressional authorization for a prolonged detention statute for Guantanamo Bay detainees deemed too dangerous to set free. It’s the latest troubling flip flop by the president, an utter abdication of the lofty promises he made during his much-heralded National Archives Speech just this May.

    This decision not only weakens U.S. detention policy, it will regrettably serve as an invitation to the courts to expand their role in national-security affairs — an area that is properly the province of the executive and legislative branches.

    Posted in Security [slideshow_deploy]

    11 Responses to The Judiciary is No Place to Make National Security Decisions

    1. Freedom of Speech, T says:

      Everything we do should be analyzed by asking two questions.

      1. Is what we are doing compromising the security of the Citizens of the United States and our soverenign territories?

      2. Will it aid and abet all enemies foreign and domestic?

      With mass communications and mass transportation, we no longer have the luxury of being politically correct.

      Better to have some hurt feelings than be dead. Amazing how millions of Americans cannot grasp that simple fact.

    2. R. George Dunn says:

      Judge Hogan needs to be hailed as a superb American, trying to accomidate the Democrats demand for civilian trials for War criminals. Truth is clear, these trials belong to the Military where the Judicial administrationis already in place and working. Get politics out of the Judiciary is right on the mark. Where is my $25.00 to join Heritage, America's vestage of hope.

    3. Pingback: Give American Muslims reason to fix their Islamic Jihad Problem; yes it is their problem « VotingFemale Speaks!

    4. TJS, Leesburg, FL says:

      Liberals are simply unfit for command. The public overwhelmingly supports strict treatment of terrorists. Conservatives must raise the issue and the solutions, must lead where the public is eager to follow. What are we waiting for?

    5. philip says:


    6. Drew Page, IL says:

      We are in a war. Al Quaeda has declared war on the U.S. We in turn have soldiers in Afghanistan trying to kill Al Quaeda combatants. During a war, enemy combatants are often taken prisoner and are held by the military as prisoners of war. As such, prisoners of war are afforded rights under the Geneva Convention.

      The Geneva Convention specifies that legitimate prisoners of war must be uniformed soldiers. Combatants not in uniform, with military identification, can be considered spies. The Geneva convention has no problem with spies being dealt with by military tribunals and being shot.

      There seems to be an uncertainty in the legal community today about the rights of enemy combatants under the U.S. Constitution. This needs to be addressed by the Supreme Court as quickly as possible. Just because someone thinks or says that enemy combatants have rights under the U.S. Constitution doesn't make it so, even if the one holding that opinion is the president.

      Even if a number of individuals in this country don't think we are in a war, our enemy does. There is a fanatical cadre out their in the world that is intent on destroying as many American lives as they can. If our president is so obsessed with political correctness that he can't bring himself to use the word terrorist or muslim extremist, he is compromising the security of America and its citizens.

      Political correctness led to the murderous rampage at Fort Hood Texas. Here, an Army officer was so upset over the possibility of being sent into action in Iraq that he complained about it o everyone he knew; hired a lawyer to get him out of the Army; made statements in front of fellow soldiers about the unjustness of the war on Islam; and was known to have sent e-mails to a muslim cleric who openly preached jihad. All of this was known by his superiors. Why was this guy not pulled out of the service? Why was his commanding officer's major concern about what impact this "incident" was going to have on maintaining diversity in the ranks. Here you have it, diversity was more important than security — i.e., political correctness. How many more lives must be sacrified at the altar of political correctness?

    7. Pingback: » The System is Failing The Liberty Tree Lantern

    8. Pingback: Are Intelligence Personnel Empowered to Employ Their Ingenuity and Resourcefulness to Connect The Dots? « A Nation ADrift-Why?

    9. Pingback: Morning Bell: The First Step Is Admitting You Have A Problem | The Foundry: Conservative Policy News.

    10. Pingback: Morning Bell: The First Step Is Admitting You Have A Problem | Conservative Principles Now

    11. Pingback: Founding Fathers Never Intended Courts to Make National Security Decisions | The Foundry: Conservative Policy News.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.