Picturing the Gitmo Legislation

Ever since President Obama’s speech last week setting forth the general outlines by which he’ll resolve the mess at Guantanamo Bay, I’ve been trying to get my head around what the Administration will put into the legislation the President has suggested he’s going to work with Congress to get.

Parts of that bill are maybe easier to see. For instance, the Administration wants to retain the option of taking cases before the military commissions. It has also committed to bring those tribunals in line with U.S. and international legal standards. (POTUS: “Instead of using the flawed Commissions of the last seven years, my Administration is bringing our Commissions in line with the rule of law.”) Most human rights organizations have strongly protested this move. But in fact most of them also took the position during the past eight years that it was possible to have lawful military commissions, just that the Bush Administration/MCA commissions didn’t pass muster. (For past human rights positions, see, e.g., these statements by the ACLU, Human Rights Watch, and Human Rights First.) So how might the commissions come more into compliance with existing law? Well, in addition to the reforms the President has already announced, it would be good for Congress to fix other commission-related parts of the MCA. For example:
• Delete MCA §948(g): “No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.” Whether or not the Geneva Conventions provide a plaintiff in a civil case a cause of action to get into federal court, the Geneva Conventions should be, at a minimum, available as a rule of decision in cases already in the courts. Such availability is consistent with (and perhaps required by) the Supreme Court’s application of the Geneva Conventions through the UCMJ in Hamdan, as I’ve explained in more detail elsewhere. For similar reasons, the similarly worded MCA Section 5 should also go.
• Clarify MCA §948d(a): ‘‘A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.” This reads as though Congress is trying to make crimes defined by the MCA retroactively applicable to a period before the MCA was passed – whether or not they were in fact crimes in violation of the law of war. Retroactive application of a new criminal offense, not already a violation of the law of war, would be a violation of the Ex Post Facto Clause. (This construction is part of a recurring problem in the statute that distinguishes “this chapter” from “the law of war.” The MCA should be consistent with and reflective of the law of war. See, e.g., MCA §950v (crimes triable by military commissions).)
• Revise MCA §950f(b-c): ‘‘(b) In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law. (c) The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of— (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.” This standard of review is unduly circumscribed. Particularly given the Article II nature of the commission authority, it is essential that Article III judicial review be as thorough as possible. Review should extend to questions of fact, subject to respect by the court to the extent commission findings have the power to persuade. And the scope of review should be clarified to include “the Constitution, laws and treaties of the United States.”

The Administration will also need to take a close look at MCA §948c, which purports to limit the commissions’ jurisdiction to “unlawful enemy combatants” – a category with indeterminate meaning in international law, and a categorization that appears, without evident legal explanation, to apply a lesser form of justice for the prosecution of some war crime violators than for others. It will also need to look again at MCA §948r, which currently provides a limited right against compulsory self-incrimination, to ensure it adequately reflects the protections of the 5th and 6th Amendments to the U.S. Constitution. And it might be particularly wise to consider limiting the authority and tenure of the military commission structure to the resolution of those cases already pending at Guantanamo Bay (or arising out of the attacks of 9/11, or some other temporal limitation). Going forward, and with adequate planning and instruction, it should be possible to avoid some of the past practices that foreclosed regular criminal prosecution in some of these cases – practices including the torture or coercion of detainees, and the failure at any time (even after weeks of un-counseled interrogation, when curing Miranda-type failures might still be possible) to advise any of the detainees they might ever have any rights at all.

Beyond the commissions, the Administration could also contemplate legislation that gives the Gitmo habeas courts more procedural guidance as they work through the 200-some remaining cases – what is the extent of the government’s obligations to search for information relevant to the detainee’s case, what substitutes for classified information are acceptable, etc. The courts have been making headway here too, but they may well welcome further congressional guidance if it’s not too late. And the Administration could finally define what circumstances will establish the termination of the detention authorized by the AUMF for any given individual. Must he renounce his membership in Al Qaeda? Must a certain length of time pass? Must active hostilities worldwide cease?

But by far the most complicated questions arise if the Administration decides it needs to go back to Congress to clarify/establish a standard for detention – that is, a definition of who may be detained – more specific than that already implicitly contained in the 2001 AUMF. To me, the decision to reopen this can of worms out of a need to resolve the situation at Guantanamo is far from obvious. After 3 acts of Congress and 7 years of litigation all bearing on the Guantanamo detainees, the courts have now finally reached the question of the substantive standard of who may be detained. Indeed, a growing group of smart district judges seem to be converging around a surprisingly similar interpretation of the AUMF – an interpretation kind of informed by international law, but that does little violence to that body of law itself (given IHL’s relative silence on the question of detention in non-international armed conflict, and given the courts’ relatively greater reliance on the domestic AUMF as the relevant font of legal authority). More than that, I’ve been struck in some of the recent conversations I’ve had with folks on both sides of the Gitmo litigation: there are lawyers on both sides who genuinely think that under the circumstances they’re winning on this detention standard. (The Administration gets to detain “members” of Al Qaeda (where membership may be determined in part by conduct), but they don’t get to detain mere “supporters” of people engaged in hostilities – conduct that the Congress has elsewhere declared criminal in nature.)

So as it stands there’s a statute (such as it is) on the books. The courts are (it appears) converging around a common interpretation. And both litigating parties appear (at least in part) satisfied with the outcome. Adopting new legislation on the standard at this point would further delay final disposition of the Gitmo cases. It will prolong the detainees’ longtime uncertainty about their fates (an uncertainty their lawyers say has been psychologically devastating for many). New legislation will face the often coarsening gauntlet of Congress, followed by a new set of potentially serious legal challenges (including whether the statute has successfully thread the needle required by the ex post facto clause that it empower the government to put people away in (as the President said) “the same type of facilities in which we hold all manner of dangerous and violent criminals” but not be understood by the courts as punitive in nature). It will establish a statutory “preventive” detention authority that can be used by any administration, and in any (say, post-attack) political circumstance subject to historically familiar kinds of legal abuse going forward. And its negotiation and passage will require a huge expenditure of political capital by an administration with an already ambitious legislative agenda. So what exactly is new legislation of a substantive standard supposed to accomplish?

The answer is far from trivial: It would produce a clearer congressional statement than any currently on the books on when and under what circumstances individuals may be deprived of their liberty. Such a statement could better insulate the detention authority from due process and separation of powers challenges undoubtedly still to come. And it may be, as the President suggested in his eloquent speech, more consistent with democracy and the rule of law that the people’s representatives take ownership of the task of defining specifically who may be detained. That instinct is surely admirable – and one of many features that distinguishes this administration from the last. But in this particular case it is not clear it advances either the interests of detainees, the security benefits the administration seeks to reap from closing the camp, or the cause of human rights. In the end, new definitional legislation asks us to trade an admittedly kluged solution to the otherwise intractable mess at Gitmo, for a more formal solution that will most likely leave us with all new messes in the years to come. I still incline toward the former. But neither is a pretty picture.