As federal courts in Washington, D.C., hold habeas corpus hearings for Guantanamo detainees, judges must decide whether the government has proved that a detainee is dangerous. National Public Radio says a new study says the rules for those hearings are so unclear that judges are applying different standards – leading to different outcomes. “It would have helped if Congress had given us a definition of enemy combatant, but they didn’t,” says Chief Judge Royce Lamberth. “The Bush administration gave us four different definitions; the Obama administration gave us another definition; each of our courts is deciding for themselves the proper definition. Most of us have adopted one definition, but I have one renegade judge that’s got another definition.”
Benjamin Wittes of the Brookings Institution and Robert Chesney of the University of Texas Law School conducted a detailed study of the opinions in the Guantanamo trials and found that “the judges are playing the role of the legislature,” as Wittes described it in an interview. “That is, they are writing the rules of the detention.” Wittes and Chesney say judges disagree about what it takes for an al-Qaida member to prove that he has severed ties with the terrorist group; judges disagree on how much evidence the government must provide to prove that a detainee is an enemy combatant; and they disagree about whether coercive interrogations permanently taint subsequent confessions by detainees.