Two Retired Judges Speak Out on Detention of Suspected Terrorists: a Decision for the Courts, not Congress

In the National Law Journal, two retired judges argue that courts – not Congress – are the natural deciders regarding which Guantanamo prisoners may be lawfully detained:

Those arguing for such new laws misunderstand both the limits of the
legislative function and the nature of the judicial process. Determining whether
a prisoner’s detention is lawful has always been a judicial function, and a
moment’s reflection is enough to see that it could hardly be otherwise.

Raising a number of questions that cannot be answered by legislation, they warn:
If Congress did as Brookings bids, the certainty we are at last achieving would
disappear in a bog of new litigation. After seven years and three U.S. Supreme
Court decisions, the country is finally putting these cases behind us.
An interesting argument that builds upon what Human Rights First, retired military leaders, experienced prosecutors, and other national security experts have been saying for some time: civilian courts are our best line of defense.

Get the facts. Support our campaign to close Guantanamo and use our courts.

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Published on March 22, 2010

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