Image: United States Supreme Court Justice Stephen Breyer at the National Archives in Washington, D.C.
Shawn Thew  /  EPA
Supreme Court Justice Stephen Breyer mentioned the possibility of a preventive detention statute to hold Guantanamo detainees
By Tom Curry National affairs writer
msnbc.com
updated 12/6/2007 5:54:54 PM ET 2007-12-06T22:54:54

When a Supreme Court justice mentions an idea of how Congress might solve a pending national security problem, you pay attention.

When the problem is the Guantanamo detainees, you pay even more attention.

In Wednesday’s argument before the high court in the case of Boumediene vs. Bush , the latest attempt by detainees to win their release, Justice Stephen Breyer indicated three times that it would be possible for Congress to enact a law that would provide the basis for holding the detainees indefinitely without trial.

Breyer seemed to suggest to Solicitor General Paul Clement that long-term detention might pass muster with the Supreme Court under “some special statute involving preventive detention and danger, which has not yet been enacted.”

Those held at Guantanamo have their status reviewed by a Combatant Status Review Tribunal, a panel of military officers, to see if they need to be held.

Detention for decades?
Only some of them will later be tried before a military commission on charges that they committed war crimes; the others will simply be held for the duration of the conflict against al Qaida. And that could last for decades.

Video: Guantanamo and the high court The detainees are seeking to have the court overturn last year's Military Commissions Act which denied them habeas corpus hearings before a federal judge to contest their detention.

Breyer’s mention of a possible preventive detention law may carry weight in Congress for two reasons: first, as a former counsel to the Senate Judiciary Committee, he used to be in the business of helping draft legislation, and second, he is a Democrat, a former protégé of Sen. Edward Kennedy, D-Mass., and an appointee of President Bill Clinton.

”Justice Breyer is a practical man; a problem-solver,” noted Doug Kmiec, a former top official in the Justice Department in the Reagan administration. “On occasion, this quality which no doubt informed his service to the Judiciary Committee continues to occur to him in his judicial work.”

Asked about Breyer’s preventive detention idea, Sen. Diane Feinstein, D-Calif., a member of the Judiciary Committee, said “It does sound like a possibility. The hard part is knowing what the criteria are” to be eligible for preventive detention.

If the standard is that someone is too dangerous to be released, then Feinstein said, “Does the driver for Osama bin Laden become that person? Does the housekeeper for Osama bin Laden become that person? Not necessarily.”

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Feinstein voted against the Military Commissions Act (MCA) last year.

The senior Republican on the Judiciary Committee, Sen. Arlen Specter, R-Pa. said Thursday of Breyer's suggestion, “I think it would be an idea worth exploring, but until you do, you certainly have to accord detainees habeas corpus rights.”

He added, “It’s something we might consider for the future.”

Specter unsuccessfully tried to amend the MCA to remove its denial of habeas rights for Guantanamo detainees. After his amendment was defeated, he voted for the act.

Not floating an idea
House Judiciary Committee member, Rep. Jerrold Nadler, D- N.Y., who was in the courtroom as a spectator for Wednesday’s argument before the court, said of Breyer, “I don’t think he was floating an idea and inviting Congress to do something. I think he was probably thinking out loud. He was saying we don’t have a preventive detention statute” and thus can not continue to hold the detainees who haven’t been charged with crimes.

Nadler also said that by passing last year’s Military Commissions Act that authorizes the president to label someone an “enemy combatant” and hold them indefinitely, Congress has already created a form of indefinite detention.

“In effect, you already have preventive detention,” Nadler said.

Nadler voted against the MCA and thinks the detainees ought to have the right to habeas corpus review by a federal judge, outside the CSRT process, to determine independently if each one is a terrorist or if they are being held a case of mistaken identity.

Sen. Jon Kyl, R-Ariz., said Breyer’s idea wasn’t really necessary. An enemy combatant held under a preventive detention law is “comparable to the prisoner-of-war status, which has never required statutory authorization to hold people,” Kyl said.

“If you could hold a prisoner of war, so that he doesn’t go back out on the battlefield to kill you,” Kyl said, then surely “you can hold these guys (the enemy combatants at Guantanamo).”

'A different kind of war'
“Now there’s also an argument that says, ‘But, this is a different kind of war because there may not be the kind of ending to it that results in a treaty being signed” and all the prisoners being returned to their own country.

But, Kyl asked, “If this war doesn’t have the kind of clear-cut ending Justice Breyer would like to see, does that make a difference? I’m not sure that it does. If the executive believes that the people (at Guantanamo) are still a danger to our troops if they are released, what difference does it make if it’s six years or ten years?”

Kyl voted for the MCA.

Kmiec said Wednesday’s oral argument in the Boumediene case indicated that Breyer was leaning toward a ruling that would give Guantanamo detainees habeas rights.

“Recognizing how this might well result in the release of bona fide terrorists, Breyer is presumably trying to mitigate that potential harm with a defined detention,” Kmiec said.

“Breyer’s thought may also been influenced by several rough proposals floating about from Attorney General Mukasey and former Deputy Attorney George Terwilliger among others to regularize the treatment of detainees under a statute, much along the detention for mental illness lines,” said Kmiec.

Meanwhile, Sen. Lindsey Graham, R-S.C., is working on a bill to try to improve the CSRT process.

“One thing I’m working on with Sen. (Carl) Levin that I think would improve the current system is to give military lawyers to enemy combatants as they face the Combatant Status Review Tribunal to provide a representative component, and to put a military judge in charge of the tribunal,” Graham said.

Levin, a Michigan Democrat who is chairman of the Armed Services Committee, was wary about discussing the topic, saying only there was “a possibility we may introduce a bill.”

He said that due to the pending Boumediene case, “One of my concerns is that we not do anything that looks like we’re trying in any way to influence or that would have an effect” on the court’s deliberations.

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