Wednesday, June 24, 2009

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.


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