Lamberth to Congress: Do something on indefinite detentions

Unfortunately, this interview with Chief U.S. District Judge Royce C. Lamberth by Washington Post criminal justice reporter Del Wilber didn't get much attention (Well, it was buried in Metro section crime blog, so...). But it's remarkable in the sense that a judge in the center of Guantanamo detainee cases seems highly frustrated about the definitive parameters of these detainees' situations, indefinite detentions in particular.

I understand Lamberth is of the outspoken sort, for judiciary official. But this interview is fascinating in that he seems to be almost pleading with the legislative and executive branches to act, and do it immediately.

Some highlights:

Q: Why are judges calling on Congress to take action?

Lamberth: Congress should have enacted some statutory guidance that would have been useful to us. For example -- what is the definition of enemy combatant, which we have had some difficulty with? And what types of evidence does Congress think would be appropriate for us to consider? Those are among the things that would be helpful.

But unless Congress were to enact something this spring, I think it’s too late anyway. We are on track to complete these cases and are moving ahead. ... The longer we have gone through this, we have seen how difficult the questions are that are being presented and how reasonable people can differ in response to the questions. I still would welcome action from Congress, but I don’t anticipate that.

This is not an ideal world, but to have so little guidance. … As a district judge, we are used to applying settled law. Congress enacts a statute, the Court of Appeals or the Supreme Court issues an opinion. But here, nothing is settled. We are creating law as we go. It’s not something district judges are accustomed to doing.

A much better way to create law is for Congress to pass something and for the executive to participate in that legislation. That is what I’ve been trying to say.

At this stage, Congress hasn't seen fit to do that. I understand that in the prior administration, it did not want congressional action -- it wanted to do it all by executive power. I do not know why this administration has not been able to create a legislative proposal.

[...]

Q: The other day, you mentioned that you struggled with ordering a detainee held, potentially for life, under the “preponderance of evidence” standard. The judges established that standard, which means the government wins if the evidence tips just slightly in its favor, for the habeas cases. What did you mean by that?

Lamberth: When you know the petitioner is going to be held for the duration of hostilities and hostilities are not likely to end in my lifetime, if not in his own lifetime, we know there is a consequence of our decision that is quite dramatic in terms of an individual’s life.

In criminal trials, we have a standard of beyond a reasonable doubt, which means proof to a moral certainty. I have no difficulty, where I have a jury to find a person found guilty beyond a reasonable doubt to a moral certainty, with sentencing that person to life in prison without parole, if that is what statutes and guidelines call for.

When you’re doing this on a preponderance of evidence, that is a different decision for me to decide if a person should be held, perhaps for life.

He also goes into coerced confessions and a severe lack of communication from the Justice Department to judges. Read the entire interview.