an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
While Congress has held two lengthy hearings this week ostensibly on the use of military commissions to try detainees for war crimes, the only item that seems to be getting any significant play is this statement by Pentagon General Counsel Jeh Johnson regarding the administration’s view on its authority to hold detainees even if they are ultimately acquitted at a commission trial. The Senate witness statements are here. The House testimony is here. (Full disclosure, I was a witness at the House hearing.)
The Washington Poststory quotes Johnson as saying:
“The question of what happens if there's an acquittal is an interesting question -- we talk about that often within the administration…. If, for some reason, he's not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it's our view that we would have the ability to detain that person.”
I think there’s actually less news here than perhaps meets the eye, but I fully understand the reaction that many, including a number in Congress, seem to be having. If you can hold them forever anyway, why even bother with a trial? And what could possibly be such a court’s claim to legitimacy if its rulings have such negligible significance?
So there’s a technical answer in international law, and a practical answer about where we find ourselves today.
The technical answer is clear if one imagines for a moment we’re in the midst of a modern World War II – a classic international armed conflict, in which it is entirely possible that war crimes will be committed; in which the United States’ authority to hold, say, prisoners of war, is undisputed; and in which the United States has in all instances scrupulously carried out its obligations under the Geneva Conventions and other relevant law. The U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians. Under current law, we could detain the soldier until the end of the armed conflict without trial (provided we continued to treat him in compliance with Geneva and any other relevant laws). But it’s looking increasingly like the armed conflict may end before next year. And if this guy is really guilty of war crimes, he deserves to be in custody (under a criminal sentence) for far longer than that. So we try prosecuting him. Unfortunately, some key witnesses end up refusing to testify at trial, and the soldier is acquitted. Also unfortunately, the war continues to drag on. Could we go back to holding him as a POW? I’d welcome correction, but I’m not aware of any international law bar to continued POW detention under those circumstances.
Does that technical answer apply in today’s rather different circumstances? The answer turns not on anything new Mr. Johnson just said, but on an argument the Administration has been asserting in Gitmo habeas litigation for months already. The Administration’s litigating position is that there is an ongoing, non-international armed conflict (i.e. a conflict not between two states, but between the United States and the organization Al Qaeda); and that the 2001 AUMF passed by Congress gives it ongoing authority to subject certain individuals (just who is the central subject of litigation) to military detention until the end of the U.S.-v.-A.Q. conflict. There is nothing in the Geneva Conventions that would affirmatively authorize such detention. But neither is there anything in the Geneva Conventions that would squarely prohibit it (provided, as always, it’s subject to adequate procedures, humane treatment, etc.). If the Administration is right about the scope of the AUMF – an interpretation that I believe is overbroad but that has so far been largely winning in the district courts – then presumably the same logic about post-acquittal detention applies as in the Nazi case.
So what’s the problem? I’d say several. First, the Administration’s litigating position on the scope of detention authority under the AUMF is hardly as clear cut as the detention authority the United States asserted over the hypothetical Nazi soldier. Its interpretation of the AUMF is, as I noted, pretty generous for a statute that doesn’t mention the word “detention” and that of itself sets forth no procedures under which such detention is to be carried out. Indeed, it’s still not clear to me the Administration has taken that position with respect to the scope of the AUMF anywhere beyond the so-called legacy cases (those detainee cases pending when Obama took office). Second, the military commission process to date has been anything but a paragon of legality or legitimacy. (Former commission prosecutor Lt. Col. Darrel Vandeveld’s testimony in the House yesterday on where the commissions have been was particularly powerful on this point.) It is possible in theory to conduct lawful trials for war crimes. But there is a great deal of appropriate skepticism (not least among House Democrats) about whether the third try at such a trial system will, particularly at this late date, fix the gross deficits of the past.
Here, the past eight years worth of behavior has left both the legitimacy of the detention authority, and the legitimacy of the trial authority, in substantial question. It is hard to imagine that combining the two will bolster the credibility of either. On the contrary, it seems very likely to make the strategic costs to U.S. counterterrorism policy – costs in weakened relations with our allies, and with the moderate Muslim world – substantially higher.