Courts using inconsistent standards in detainee cases

NPR:

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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."

For example, Wittes and Chesney say that 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.

"Judges all seem to agree that you can't beat evidence out of people," Wittes said, "but the question of under what circumstances the taint of coercion will continue to preclude new statements seems to divide them very deeply."

When the Supreme Court ordered judges to start hearing these cases, the justices did not provide specific guidelines. Now, according to Wittes and Chesney, some judges are releasing detainees that other judges might keep locked up, "so in a relatively small group of cases, you have dramatically different outcomes according to which judge you end up with," Wittes said.

Appeals courts are supposed to even out these differences and clarify the law, but the appeals court in Washington, D.C., has not reviewed many Guantanamo decisions.

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This is just more evidence of the mistake the Supreme Court made in giving courts jurisdiction of these cases to begin with. They should have left them with the military commissions, who do not see the same ambiguities on who is an unlawful combatant. In fact the definition should be pretty clear. If they do not wear a uniform and they are making war against us and our allies they are an unlawful combatant.