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
Nothing like summertime to catch up on a little light reading I spent too little time with during the semester. So especially after being re-energized at this year’s American Constitution Society Convention (where I did a panel with Gene Fidell and others far more interesting than I on military commissions vs. federal courts, and got treated to a Cory Booker barn-burner of a “do something” speech), herewith my first catching-up blog.
If you read any new document this summer in the ongoing detention-interrogation-trial saga that is Guantanamo Bay, make it the (relatively) recently released final report of the Guantanamo Review Task Force. This was the inter-agency body established by Executive Order a few days after President Obama took office and charged with reviewing (which required first collecting) all of the government’s existing information about the then-current residents of Guantanamo Bay and making recommendations for their disposition. The report is available here and was the subject of a few articles (in the Times and Wash Post),though my sense is that it was largely overlooked when it was released. The report itself is a concise 32 pages, and contains (among other instructive passages), the most detailed official public description (beginning p. 22) I’ve seen explaining why the executive branch has determined that 48 detainees at Gitmo should still be detained but cannot be prosecuted in either an Article III or military commission court.
Before I get to the reasons why 48 detainees have been deemed unprosecutable-but-unreleaseable, I must start out by pausing on the number, which seems pretty striking in the eight years I’ve spent following U.S. counterterrorism detention operations post-9/11. Out of the 800-some originally shipped to Guantanamo, out of the tens of thousands detained by the United States since 2001(in operations from Afghanistan to Iraq and beyond), out of the millions of people on the planet who undoubtedly wish to do us harm – the whole debate, and the future of U.S. detention policy, has now evidently come to down to the apparent intractability of these 4 dozen cases.
Indeed, as the Task Force report indicates, the real fraction of the post-9/11 detainee population who might fit into the ‘intractable’ category if seized today is almost certainly smaller than that. For example, some of the final 48 aren’t prosecutable because the federal criminal material support law that existed in 2001, when these detainees were seized, did not extend to offenses committed outside the territory of the United States. That territorial gap has long since been filled by an amendment to the material support statute. So if the U.S. picked up one of those men today, prosecution would be an option. Others of the 48 (unclear from the report how many, but at least a handful) have been rendered ‘unprosecutable’ because of decisions the last administration made – which decisions cannot now be undone. Like what? Some of these men have been detained so long, the statute of limitations on the offense for which they might have been prosecuted has run. For some of them, the only/best evidence we have of any wrongdoing were statements gleaned from witnesses subject to torture or cruel treatment. And there are others (like a Taliban military commander) who – had we treated them in accordance with international law in the first place – it appears would have been far less controversially detainable by the U.S. and/or the Afghans under existing detention authorities (like the statutory Authorization for Use of Military Force (AUMF), the international laws of armed conflict, and/or specific U.S.-Afghan and/or UN authority).
For apparently a large subset of the 48, the United States simply made no attempt to collect (or save) any information about them at the time of their capture that might subsequently be used in a prosecution, for war crimes or otherwise. In some cases, such a decision might well make sense. A Taliban commander caught by U.S. forces in Afghanistan in 2002 was picked up in a classic international armed conflict, and, particularly had he been afforded the protections of the Geneva Conventions, could be lawfully detained for the duration of that conflict without need for trial. But it’s not at all clear that the set of men detained-without-effort-at-evidence-collection is the same as the set of men lawfully detainable under the international law of armed conflict. On the contrary, much in the detention practice of the last administration suggested that people were detained (in CIA facilities and elsewhere) without any concept of an end-game – whether the plan was to prosecute them for war crimes some day, or to detain them until the end of the Afghan conflict, or simply to detain them forever without much worrying about the law of why or how. In short, it seems likely that for some of these remaining 48, there was simply no plan at all. Presumably, for the wouldbe terrorist detainee we pick up tomorrow, we have a plan now. In all events, if we subtract all of those but-for cases from the Gitmo 48, how many remain who would pose an intractable detention dilemma, seemingly fall into a gap in existing legal authority, if we picked them up today? A dozen? A handful? For the sake of this group, some still argue, we should pursue new statutory authorization for the (indefinite?) detention of (which?) terrorist suspects for the (indefinite?) future of the United States. When Holmes wrote that hard cases make bad law, he wasn’t kidding.
Ok, so what it is about these 48 men such that, as the report put it, “the totality of available information – including credible information that might not be admissible in a criminal prosecution – indicated that the detainee poses a high level of threat that cannot be mitigated sufficiently except through continued detention.” The report says these detainees “were characterized by one or more of the following factors…”: (1) “Significant organizational role within al-Qaida, the Taliban, or associated forces.” (2) “Advanced [jihadist] training or [combat] experience.” (3) “Expressed recidivist intent;” or, (4) “History of associations with extremist activity.”
While there remain questions about what it means “forces…associated” with the Taliban or al-Qaida, category (1) above seems to fall pretty squarely into the interpretation of the AUMF the Administration has now successfully advanced before the D.C. federal courts. It is at least in part consistent with the kind of detention contemplated by the international law of armed conflict. And beyond that – as the habeas cases are making clear – the legality of such detentions depends a lot on the particular facts of the case. Category (2), while also leaving some ambiguities, sounds a fair bit like conduct that is now – but was not necessarily in 2001 – covered by the federal criminal laws of the United States. Receiving military training from a terrorist organization is its own independent federal crime and/or is almost certainly prosecutable under the extraterritorial material support offense. Category (4) – “History of associations with extremist activity” – seems to me simply too vague to make heads or tails of. It is not – and the report does not suggest that it is – a legal category of some kind. But even as a descriptive tag, it seems to me broad enough to include almost anything. Or not. So for now I leave it to one side.
Which brings us to Category (3) – those with “[e]xpressed recidivist intent.” Assuming such men do not also fall into any of the other descriptive categories, I take it that such an individual is one for whom the circumstances of his seizure are either unknown or not plausibly in the context of armed conflict, for whom there is no available information as to his past activities, but who, at some point during the past 8 years of detention in/around Guantanamo Bay, has indicated that if released, he’d like to, for example, kill Americans. If I were President Obama, this is the guy whose case would keep me up nights. But here’s a question, and it is a genuine one: By what law may the United States detain someone who, without more (i.e. no evidence of Al Qaeda membership, of engagement in armed conflict, etc.), expresses an intention to do harm?