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Thursday, June 13, 2013

The Guantanamo Quagmire: What Criminal Sentencing Can Teach Us

Jonathan Hafetz


In last month's speech at the National Defense University, President Obama renewed his pledge to close the Guantanamo Bay detention center. As initial steps, Obama lifted his prior ban on transfers of detainees to Yemen (home to approximately half of the remaining 166 detainees) and announced that he would appoint a senior envoy from the State and Defense Departments to oversee the transfer of detainees to third countries. Obama also expressed his intention of ending the transnational armed conflict with al Qaeda and associated forces (i.e., the "war on terror"), which would eliminate the basis for the continued indefinite detention of Guantanamo detainees under the 2001 Authorization for Use of Military Force (AUMF). But the conflict does not appear to be ending anytime soon. And even if Obama can overcome the substantial political obstacles to moving Guantanamo detainees to the United States, it would not resolve the underlying problem of continued law-of-war detention under the AUMF. Indeed, that problem is likely to grow more acute in light of the recent statement by the military commissions' chief prosecutor that fewer Guantanamo detainees will face charges than originally expected.

I’ve just posted a forthcoming article that suggests a new approach to this issue—one that seeks to reexamine long-term AUMF detentions through the lens of criminal sentencing. As the article explains, criminal sentencing offers two main insights: first, it highlights the importance of a judicial proceeding focused not merely on whether a person may be detained (as the current habeas litigation does), but also on how long that confinement should last; and second, it underscores the value of examining multiple factors about an individual, including whether continued confinement is proportional to that individual’s past conduct, and not merely assessing future risk (as the administrative review process now does). These two proposals are severable, as adoption of a standard that considers a broader range of factors about an individual may be implemented whether review of continued detention is conducted by a court or an administrative body, such as the current Periodic Review Board.

Criminal sentencing might, at first blush, seem irrelevant to AUMF detention, which is premised on the non-punitive rationale underlying traditional law-of-war confinement (i.e., temporary confinement intended not to punish, but merely to prevent a combatant’s return to the battlefield). However, criminal law notions of culpability and individual responsibility permeate the detention of terrorism suspects under the AUMF. Criminal sentencing, with its potential for calibrated assessments and the imposition of liberty-restrictions proportionate to an individual’s conduct, also has a greater potential to curb over-detention. It is unnecessary to determine that AUMF confinement formally constitutes punishment—thus triggering the panoply of criminal trial rights—to acknowledge that criminal sentencing can inform the design and operation of a detention review system conducted pursuant to law-of-war principles. If, as Bobby Chesney and Jack Goldsmith have previously argued, the emerging model of national security detentions properly incorporates heightened procedural safeguards drawn from criminal law in determining who may be held, that hybrid model can likewise constructively draw upon other facets of the criminal law that bear on the question of how long the confinement should last.

The aim, in short, is not simply to provide new solutions to the seemingly intractable problems posed by Guantanamo. It is also to underscore the need for a normative and conceptual shift in the evolving jurisprudence of detention, one that more accurately reflects the nature of the armed conflict the U.S. is now waging.

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