Designation Hitters

The Los Angeles Times notes that two former officials of John Ashcroft's Justice Department, Viet Dinh and Michael Chertoff, recently have expressed misgivings about the Bush administration's handling of "enemy combatants."

Dinh, now a Georgetown law professor, headed the Justice Department's Office of Legal Policy until May and was the main architect of the USA PATRIOT Act. He says President Bush's assertion of authority to indefinitely imprison "enemy combatants" without giving them an opportunity to challenge the designation is "unsustainable." He told the Times:

The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to….But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated.

Chertoff, former head of the Justice Department's criminal division and now a judge on the U.S. Court of Appeals for the 3rd Circuit, had this to say in a speech last month at the University of North Carolina's law school:

Two years into the war on terror, it is time to move beyond case-by-case development….We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available.