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
I feel as though I should start by apologizing from my mini-blogging hiatus. Nothing like prepping a new course to distract one from the trials of law outside the classroom.
Thanks to my Opinio Juris colleagues Julian Ku and Ken Anderson, as well as Ben Wittes, among others, there’s ample reason for re-engaging. As Julian and Ken have noted with approval, Wittes wrote in the Post this week to attack the Obama Administration’s apparent decision not to seek new “preventive” detention legislation as it goes about the necessary business of closing Guantanamo. The essence of Wittes’ critique is the thesis he’s pursued in more than one book over the past few years: If we’re going to be in the business of counterterrorism detention (as surely we should be), far better to have the contours of those rules (who may be detained, and pursuant to what set of procedures) set forth in clear legislation, rather than settled piecemeal by the courts. Not to do so at this stage, according to Ben, amounts a presidential endorsement of the views of Dick Cheney.
Here’s why I continue to think that Ben is wrong, that the President is right, and that the actual Dick Cheney approach just suffered another blow.
(1) Ben wants new legislation for two reasons. The first reason is because he thinks the United States needs new detention authority to be successful in combating terrorism beyond that already afforded by the existing criminal justice system and the existing laws of war. As far as I can tell, the Administration hasn’t actually come to closure on a decision about this question with respect to its long-term counterterrorism planning. In part because there is some disagreement on the question within the bureaucracy, in part because it is not necessary to resolve this longer term question in order to address the nearer term goal of closing Guantanamo (more on that next), my impression is the Administration has elected to continue discussing the matter, or at least leave off decision for another day. Whatever the reason, it’s clearly good news. For reasons former federal prosecutors and many others have explained in deep detail (start here), the criminal justice system is an incredibly powerful tool for dealing with a broad swath of cases (far broader than preventive detention advocates generally credit), and flexible enough to accommodate the special procedural demands of terrorism trials. At the same time, the United States may still detain individuals outside this system, provided it is within the limits of the established international law of armed conflict (a body of law the Supreme Court recognized had been implicated in Afghanistan back in 2004). We may disagree about how broad the category of individuals covered by this latter law, but there is no doubt it provides further scope for authorized detention. The case most often made for why such authorities are not enough (such that new legislation is required) are based on examples drawn from Guantanamo Bay and other Bush Administration misadventures. That remains the habit today, and I suspect will as long as Guantanamo remains. These cases, as I’ve often noted, are generally bad examples from which to draw broad policy conclusions because potential outcomes at this point are grossly limited by decisions the past administration made (to torture, to not advise detainees of any rights, etc.) that, had the approach been different, would have left available existing lawful options that are now foreclosed. Particularly given the strategic security costs most security experts recognize are associated with any broad new detention authority in counterterrorism, the case has simply not been made that more detention authority will yield any benefits worth the cost.
(2) The second reason Ben wants new legislation is because he doesn’t think there is enough clear law on the books to ensure the fair disposition of the remaining detainee cases at Guantanamo Bay. Were we still in 2002, and despite Congress’ embarrassing recent displays of demagoguery on the issue of where Gitmo detainees may be held pending trial, I might well agree with him. The statute on which U.S. detention authority to detain those at Gitmo has now rested for 8 years (the AUMF) doesn’t mention the word “detention,” much less who may be detained, and makes no clear provision for the procedural conditions under which such detention may be carried out. It is not, however, 2002. Today, that bare statute as applied to the Gitmo detainees has been elaborated under law in multiple ways. First, since the Supreme Court’s Boumediene decision in 2008, it has been clear that all those held at Guantanamo Bay have a constitutional right to seek a writ of habeas corpus to review their detention. Ben may think the particular procedures of habeas hearings (rules of evidence, etc.) aren’t well enough settled to leave to the courts to flesh out. But the courts have been in the business of shaping procedural rules and exceptions under the Federal Rules of Civil Procedure and the like for some time now. In any case, the courts have already decided some 38 habeas petitions from Gitmo detainees without congressional guidance. Procedural instruction might have been helpful. But it is hard not to view the window on useful legislative contributions to this particular set of details, at least for the Gitmo cases, as passed. Second, since the Supreme Court’s Hamdi decision in 2004, the AUMF must be read to authorize at a minimum the detention of “an individual who … was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” To the extent there remains disagreement about the scope of the definition beyond that (disagreements the trial courts in the habeas cases have now already resolved), there is also – Third, the guidance from the Supreme Court, embraced by the Administration, that the interpretation AUMF is to be informed by the international law of armed conflict, a longstanding body of law that brings with it its own set of modestly detailed, but still clarifying rules. In the face of all this, there is now a reasonable case to be made that whatever due process deficits existed with respect to the Guantanamo detainees in the AUMF standing alone have been substantially cured by subsequent developments (all of which were forced upon the last administration despite Dick Cheney’s best efforts). Ben may not like the path the country took to arriving at the rules as they now stand. Neither do I. But rules there are nonetheless.
(3) Which brings us to the most troubling of Ben’s suggestions – that somehow in employing this authority President Obama is channeling Dick Cheney (or perhaps more specifically David Addington and John Yoo). So let’s just recall what their position on Gitmo detention actually was. First, the Bush Administration argued that the President could detain anyone as a matter of inherent authority under Article II of the Constitution. The Obama Administration rejected that position from the outset, and has relied squarely for its detention authority on congressional delegation. What’s the difference? Among other things (including even modest respect for the formal separation of powers), the acknowledgement that there are limits under law to the President’s power to detain. Second, the Bush Administration argued that the independent courts had no authority – none – to review the legality of the detentions at Guantanamo Bay. The Supreme Court – not once but effectively three times – rejected that view. One must credit the conservative-controlled Court and not the Obama Administration for that change. But there is no sense in which the review process available now at Guantanamo is related to the views of Dick Cheney. Third, the Bush Administration rejected the notion that international law, including the Geneva Conventions, could constrain its authority in any way. It invoked the Conventions when it thought them useful to enlarge executive authority. It otherwise elected to apply them only when it thought “consistent” with military “necessity.” Cheney did not believe in international law as law. At least so far, the Obama Administration does.
(4) So what is the same between the Cheney view and the Obama view on Gitmo detention? It is at most the modest notion that the President may detain some set of individuals who are actively engaged in armed conflict against the United States. Exactly which set will no doubt be litigated more at some point later in the Guantanamo cases, depending on which if any detainees remain. So will exactly what “armed conflict” we’re talking about (Afghanistan or something more). (So, it must be emphasized, would those questions be litigated at length should Congress ever pass any new legislation on the questions, no matter how clear it tries to be.) But the basic idea – that there can be such a thing as, for example, a lawful prisoner-of-war – is one no one seriously disputes. That commonality doesn’t make the President, or human rights groups for that matter, the legal (or moral) equivalent of Dick Cheney. It makes them students of the law.