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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The struggles of Obama’s detention policy task force
President Obama’s detention policy task force has said it needs more time to complete its work. Small wonder: when you start with the premise that certain detainees are “too dangerous to release” and then try to come up with legal procedures that will support that pre-determined outcome, you run into some sticky legal, practical, and political problems. (I’ve written about the administration’s “sentence first, verdict afterwards” approach here.)
The good news is that the Obama administration appears to be genuinely wrestling with the problems that follow from reverse-engineering systems of justice to guarantee continued detention. The prior administration didn’t bother with legal window dressing, let alone worry about the constitutional shortcomings of such an approach. The bad news is that the Obama administration still thinks it can overcome those problems if it gives detainees a carefully circumscribed menu of rights that falls somewhere between no rights at all (the Bush approach) and the rights they would get in any existing American system of justice.
The preliminary report of the task force, which focuses on the use of military commissions, doesn’t reveal any of this internal struggle. This is a public document, intended for public consumption. It doesn’t contain any real analysis or recommendations; those presumably appear in other, non-public documents. Instead, it sets forth the decisions already made by the President (and already made public) and justifies them. It’s an advocacy piece, pure and simple.
But the advocacy falls short on many fronts. The report justifies using commissions on the ground that “federal courts have not traditionally been used to try violations of the laws of war.” True; but the current conflict differs from previous ones in a way that’s acknowledged in another section of the report: “In the current conflict . . . the unlawful activities of our adversaries can in many cases be fairly characterized both as violations of the law of war and as terrorism offenses under our federal criminal code.” Federal courts, of course, have traditionally (and successfully) been used to try terrorism offenses. In any event, if the administration insists on invoking the “law of war” framework and using a military tribunal in some cases, why not use courts-martial—the regularly constituted military courts established to try U.S. soldiers and prisoners of war?
The report notes that “[m]ilitary commissions have been used by the United States to try those who have violated the law of war for two centuries.” Again, true. But the report fails to note the inglorious history of these commissions, as Gene Fidell has so persuasively laid out. It also fails to note that the commissions have been invoked only where existing courts lacked jurisdiction over the offenses, and that the procedures used in these commissions have traditionally mirrored those of courts-martial (neither circumstance applies here). The Supreme Court found those facts significant the last time it considered the legality of military commissions—it will presumably find them significant in the inevitable next go-around.
The report lays out the commission procedures that the administration endorses. There’s no question that they improve on the procedures used in the last iteration of the commissions. I, for one, celebrated the sight of administration officials in a recent Senate hearing acknowledging that the Due Process Clause applies in military commission proceedings and asking Congress to add more protections for defendants. Still, the procedures advocated by the administration deviate in important ways from those used in courts-martial and Article III courts. Among other differences, the administration wants to be able to present hearsay evidence, and to restrict defendants’ access to classified information, in ways that wouldn’t be allowed in regular courts.
These are not small matters. In the debate over how to deal with detainees, the rules governing hearsay and defendants’ access to evidence have too often been characterized as procedural handicaps designed to give guilty defendants a better shot at beating the rap. In fact, the point of these rules is to ensure accuracy and guard against the conviction of innocent persons. Chipping away at them increases the likelihood of obtaining convictions, to be sure, but those convictions are much more likely to be erroneous.
What’s the administration’s justification for deviating from these rules? The report includes the usual argument about “the realities of the battlefield.” These words seem to start and end the debate for most lawmakers, but the argument doesn’t hold up to scrutiny. First, a vanishingly small number of current detainees were apprehended in an actual battle with U.S. military forces; most were turned over to the U.S. after capture by other entities or picked up in their homes or other locations. Second, the Uniform Code of Military Justice, in accordance with the Third Geneva Convention, requires the U.S. to try prisoners of war using the same courts and procedures used to try our own soldiers (which are the same procedures used in Article III courts). If those procedures are sufficient to try regular prisoners of war—who are far more likely to be captured on an actual “battlefield”—they are sufficient to try the current detainees.
The report also cites “the unique circumstances of . . . intelligence operations” and the need to “protect intelligence sources and methods.” There’s nothing unique about this consideration. Intelligence information has been implicated in scores of espionage and international terrorism cases that have been tried in regular federal courts. The information has been handled under the Classified Information Procedures Act, which allows the government to sanitize classified evidence in various ways before showing it to defendants. Of course, if the government doesn’t want to disclose even a sanitized version of the evidence, it may have to pursue lesser charges or drop the prosecution altogether. That’s not a pleasant choice, but the alternative—allowing the government to lock people up based on evidence they don’t get to see—is worse, because it results in the conviction of innocent people.
At bottom, the procedures used in regular courts are perfectly adequate to try detainees in the conflict against Al Qaeda and the Taliban, with one exception: sometimes, defendants in regular courts get acquitted. And as much as the Obama administration may want to adhere to our values, “innocent until proven guilty” may not be a value it feels it can afford when dealing with suspected terrorists. Under the administration’s current thinking, it will first determine which detainees will continue to be locked up, and will then obtain the requisite sentence from a court. Its goal now is to find a way to guarantee those sentences, and to do so in a manner that doesn’t force the government to make the difficult choices that justice occasionally requires.
The Obama administration can do better than that. We know the task force is struggling; let’s hope that its better angels prevail, and that we see a very different report six months from now.