Panelists at a Federalist Society event said today that they remain skeptical -- for very different reasons -- of proposals for a new legal framework to handle suspected terrorists.
The Obama administration has been negotiating a new framework with Sen. Lindsey Graham (R-S.C.). At a Senate Judiciary Committee hearing last week, Graham and Attorney General Eric Holder Jr. referenced the negotiations, discussing a potential deal could include money to buy a prison in Thomson, Ill., and clearer authority for the government to hold detainees indefinitely without charge.
Today, Christopher Anders, senior legislative counsel for the American Civil Liberties Union, said Congress and the administration should hold off. Speaking on a panel in the U.S. Capitol Visitor Center, Anders said a new law would slow down detainees’ pending habeas petitions.
“The courts are starting to get it right,” Anders said. “For Congress to step in now on those kinds of things — that doesn’t seem like a very helpful way to go.”
A legislative fix is not the first choice for panelist Gregory Katsas, either. Katsas played a key role in detainee issues during the George W. Bush administration as assistant attorney general for the Justice Department’s Civil Division.
“It seems to me we should think of this within a traditional, law-of-war framework,” said Katsas, now a partner in the Washington office of Jones Day. Katsas cited World War II-era legal precedents on the detention of unlawful combatants to argue that suspected al-Qaeda members could be handled as Nazi saboteurs were. New legislation, he said, could tie the hands of the executive branch.
Two other panelists — National Journal columnist Stuart Taylor Jr. and Brookings Institution senior fellow Benjamin Wittes — were more open to legislation.