John Adams Meets Joe McCarthy

Eugene R. Fidell

The current campaign against Attorney General Holder for hiring lawyers who have either represented Guantanamo detainees or have filed briefs or otherwise taken positions supporting their interests in habeas corpus litigation is a nasty business that should offend every American. The demand for a list of these lawyers' names brings to mind Senator Joe McCarthy and his list of communists in the State Department. It also brings to mind our second president, John Adams, and an equally patriotic lawyer named Kenneth C. Royall who got to be Secretary of War and Secretary of the Army after defending the German saboteurs who were convicted by a 1942 military commission.

The effort to delegitimate the representation of detainees by treating as infiltrators those who have answered the call to public service in the current administration is beneath contempt. No such objection was raised when Royall was selected to be a brigadier general or senior civilian official. Nor did Adams’ representation of the Redcoats who perpetrated the Boston Massacre—probably the most loathed criminal defendants in Eighteenth Century North America—prevent him from succeeding George Washington.

In 2003, when the military commissions were just getting underway, a nonprofit organization I head, the National Institute of Military Justice, struggled with whether civilian attorneys should participate in what many believed were deeply flawed commissions. In the end we opposed a boycott:

The question whether to participate in proceedings when one believes that the governing procedures are an unwarranted departure from due process norms must be decided according to each individual’s conscience and professional values. But it would be as unfortunate for the American justice system for competent civilian defense counsel to make themselves unavailable in military commissions as it would be if civilians were formally precluded from participation. Military lawyers have proven over many years that they can and will provide zealous representation, even for highly unpopular clients. Nonetheless, and whatever else may be said of military commissions, public confidence in the administration of justice would be ill-served by a boycott by the civilian bar. Public esteem for the bar would also suffer. . . .

The absence of competent civilian defense counsel from military commissions would mean that talent and experience that might improve the quality of justice and promote confidence in the fairness and integrity of the proceedings will be missing. There is an argument, of course, that by abstaining from military commissions, civilian lawyers will demonstrate their rejection of the procedures chosen for these tribunals. But as long as those accused face trial by commission, abstention by the civilian bar cannot increase the likelihood that they will receive justice or at least as much justice as might be obtained with help of civilian counsel. . . .

Mindful of the fact that the decision to participate may be a function of deeply held and, in many instances, conflicting personal and professional values, and that reasonable people may well differ on the matter, we recommend that attorneys who are otherwise qualified for the civilian defense counsel pool, and have the time, give serious consideration to submitting their names. The highest service a lawyer can render in a free society is to provide quality independent representation for those most disfavored by government. . . .

The bar came forward and was right to do so, whatever one may think or feel about the detainees themselves. Lawyers from nonprofit organizations and law firms big and small exerted themselves (winning impressive victories time after time in the Supreme Court) despite such disturbing events as the broadcast suggestion by a Bush Administration official that clients of some of the white shoe law firms whose partners and associates were representing detainees should take their business elsewhere. That official soon left the government and, to their undying credit, house counsel for the very law firm clients he sought to influence spoke up forthrightly to express admiration and support for the pro bono work of their attorneys.

What the detainees’ lawyers have done is in keeping with the highest tradition not just of the bar, but of our country. Don’t expect any of them to be recognized in the gallery at some future State of the Union address, but if some of them are willing to serve the nation, we should welcome them rather than vilify them, confuse them with their clients, or permit others to use them as a tool for undermining an administration that is simply trying to clean up the mess it inherited.

Labels: Guantanamo, Military Commissions; Joe McCarthy; Detainees

Posted 8:18 AM by Eugene R. Fidell [link]

Post-Acquittal Detention

Deborah Pearlstein

[Cross-posted at Opinio Juris]

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 Post story 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.

Labels: Guantanamo

Posted 2:51 PM by Deborah Pearlstein [link]

Look Out Gitmo, Congress is Back

Deborah Pearlstein

First, my thanks to Jack Balkin for the kind invitation to join the conversation here at Balkinization from time to time. I’ve been following developments in Guantanamo and related counterterrorism detention and trial issues for a while (e.g. here and there), and am from that part of the academic universe still mourning Marty Lederman’s departure from the blogosphere.

With rumors now flying fast and furious that the erstwhile senatorial trio of Graham, Levin, and McCain are hoping (against hope) that the third time will be the charm on legislative efforts to resolve the mess at Guantanamo, it might be too easy to overlook the already bad Gitmo legislation (attached to a war funding bill) the President appears poised to sign into law any day. Scotusblog has the key provisions here. In addition to requiring the administration to submit regular reports to Congress on the legal status of all of the current Gitmo detainees, as well as a “summary of the evidence, intelligence, and information used to justify the detention of each detainee,” the legislation bars the use of any funds for the transfer of Gitmo prisoners to the United States, either for release or continued detention. The legislation also bars the administration from transferring any Gitmo detainee to the United States for criminal prosecution until 45 days after the President submits a plan detailing, among other things, how he plans to address the national security risk that such a transfer poses. And it bars the President from transferring any Gitmo detainee to any other country in the world unless the President first submits to Congress (15 days in advance) the “terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.”

I'd welcome informed disagreement, but the ban on detainee transfers to the U.S. seems to me without serious justification as a matter of policy. (That is, its existence seems less a function of any real fear that an actual terrorist might escape a Supermax detention facility, and more – pure speculation - a result of accepting some congressional gamesmanship now in the hope of preserving a chance to pass health care reform later this year.) The more interesting question floating around is whether it might be vulnerable as a matter of law.

A few legal theories come to mind; none seems all that plausible. Theory 1 is that this kind of restriction is an unconstitutional infringement on the President’s power as Commander in Chief (hat tip: John Yoo). If this were the Bush Administration, one would now be hearing a vigorous argument that Congress cannot micromanage the executive’s decision-making about precisely where to house and how to dispose of people who are effectively prisoners of war. That one is not hearing such an argument from the Obama Administration is a hopeful sign, consistent with its abandonment of inherent executive authority arguments in the detainee habeas cases now making their way through the courts. It is also a sign that it is not a very good argument. Congress has express constitutional power to define and punish offenses against the law of nations, and to make rules concerning captures on land and water. The Geneva Conventions (ratified by the Senate) regulate the heck out of how the executive handles armed conflict detainees. So it seems as though whatever power the Commander in Chief has in this area, he lost this particular prerogative a while back. (Theory 1.5 might be that by putting conditions on the President’s ability to criminally prosecute these detainees, the legislation infringes on the President’s constitutional authority to “take care” that the laws are faithfully executed. But the restriction here is more in the nature of a burden on prosecution rather than a bar. Congress is sharing authority, not usurping it.)

Theory 2 is that the legislative restriction on the possible disposition of this particular, identifiable set of detainees functions as a bill of attainder. As it stands (or as it stood when they were captured), some of the Gitmo detainees might have had, for example, claims for asylum in the United States. This legislation effectively conducts an asylum-proceeding-by-legislature, an adjudicative function that properly belongs with the courts. But the core of the Bill of Attainder Clause as I understood it (reaching back a ways here) was that it was meant to prevent trial by legislature, an adjudicative proceeding that imposed pains and penalties on identified individuals, or that otherwise deprived them of liberty or property they otherwise possessed. Does the ability to file a speculative claim for asylum count? Maybe, though given the current state of asylum law, doubtful. More, though, the bill is written as a funding restriction. It doesn’t actually deprive these individuals of the right (for example) to seek asylum someday. It just doesn’t let the President transfer them to the United States first.

As with virtually everything to do with Guantanamo, we may yet see this litigated. In the meantime, I’m left with increasing pessimism about the ability of Congress to contribute helpfully to the problem of Guantanamo, and increasing certainty about the likelihood that it will contribute.

Labels: Guantanamo

Posted 1:16 PM by Deborah Pearlstein [link]