Co-authored with Jack Goldsmith, The Washington Post, December 22, 2009
Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court’s intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.
Many commentators have complained about this state of affairs and the contradictory and incoherent body of law it is producing and have urged the political branches to enact legislation to create a uniform and democratically legitimate detention policy.
Now a more important voice has joined the call for legislative reform.
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.
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Benjamin Wittes 