Picturing the Gitmo Legislation

by Deborah Pearlstein

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.


11 Responses

  1. It’s hopeless Deborah: the “military commissions”, the MCA. and DTA are all beyond salvage. The priority now is to get the President to see the truth and discard all the mistaken and dishonest advice he’s been getting on these issues (which is mostly the result of failing to restore order and do a thorough house cleaning at DOJ, DoD, and CIA).
    He’s committed to discarding the bad decisions, but he’s been conned into accepting the fraudulent premises those decisions dictated — in violation of his own order not to rely on any legal adice of the Bush OLC. (Though I imagine they’ve written a new set of memos for the sake of form.)
    The key item in his speech was the false claim there are war crimes which cannot be prosecuted under Title 10 or Title 18. That is an absolute fallacy, and is purely a product of David Addington and Dick Cheney. If Barrack Obama doesn’t figure that out QUICK, he’s going to wind up a war criminal just like his predecessor. Our job is to cut through all the BS the apologists are spewing and educate him. And some time soon, I’m goingto be drafting an open letter intended to do just that. 18 USC 2441
    It’s the law.

    [Edited by OJ]

  2. “Such availability is consistent with (and perhaps required by) the Supreme Court’s application of the Geneva Conventions through the UCMJ in Hamdan”

    In Hamdi the court found that after Congress authorized the use of military force under the AUMF, then enemy combatants could be detained under the common law of war in the absence of explict statutory authority to detain. In Hamdan the Court then found that if the President relied on the common laws of war to justify detention without explict statutory authority, then that detention was constrained by interntational law (in this case, by Common Article 3 of the GC).  This reasoning has nothing to do with the UCMJ, which is not referenced in that part of the decison.

    However, once an explict statute is passed, then Hamdan is off the table. Certainly every statute should, like the UCMJ does, scrupulously follow the requirements of the Geneva Conventions. The real problem, however, is how to determine which requirements apply. Is a particular detainee a POW protected by the Third Convention, a Civilian Internee protected by the Fourth Convention, a non-state actor protected by Common Article 3, or a civilian criminal subject to trial in Federal Court not protected by any Geneva Convention?

    The best possible single suggestion is that Congress should not make the same mistake they did with the MCA and throw together something in a rush driven by the ideological clowns in the White House and some political appointees in the DOJ. If you want to do this right, start by getting objective independent input from the JAGs of the various armed services, and don’t pass anything without JAG approval. They spend all their time thinking about these matters, and they don’t come with the ideological baggage of political parties.

    “to ensure it adequately reflects the protections of the 5th and 6th Amendments to the U.S. Constitution”

    If the Insular cases make it clear that the US Constitution did not apply to Cuba and the Philippines, then clearly it also does not apply to Taliban soldiers captured in Afghanistan. No court has found an application of the 5th and 6th Amendments to any detainee, and several district courts have ruled that they have no constiutional rights.

    However, even though “due process” is a constitutional right, it is pretty clear that detainees are entitled to some level of due process even when they have no rights through the Constitution. For example, under the Third Geneva Convention, a POW is entitled to all the same rights that a US soldier would have if charged with the same crime. So we are obligated to grant equivalent rights even though the Consitution itself does not protect the POW.

    Things are less clear for civilians who are subject to military or Federal trials for crimes committed in Afghanistan. It may be desirable policy to create rights equivalent to consitutional rights, but the Consitution itself does not require it nor is the US clearly under any treaty obligation to do so. Rather, Common Article 3 referenced in the Hamdan decision requires simply that we provide due process and rights such as would be generally recognized to be appropriate throughout the international community. Since the protection against self-incrimination is specific to the US and not shared by other countries, it probably is not among the requirements of the GC.

  3. “mostly the result of failing to restore order and do a thorough house cleaning at DOJ, DoD, and CIA.”

    This has some validity.  New appointees are slowly developing some traction, but many career staff and appointed holdovers are fighting hard for the status quo ante . . .

    For the most part they do so in good faith and in light of arguments and analyses thoughtfully developed over the past 8 years; in my view, however, these views tend to wieght the balance in favor of tactical and operational concerns and bureaucratic or institutional interests and tend to discount longer range strategic and broader interests.  I advocate new vision, and some destructive innovation in light of a holistic analysis and description of national interests at stake, their value (vital, important, or less), our strategy (if we do “x” they will do “y”), and tangible strategic objectives desired.

    I am not confident we have a unified view of those matters yet across the executive branch; without conceptual unity we cannot get to unity of effort.  Internal debate continues, and past practice, benefiting from inertia, tends to prevail. 
    “Cleaning house,” might have helped, but the politics have inhibited action here (for example, Panetta might not have been confirmed absent a promise to retain the incumbent Deputy….there are other examples).

    Still not too late, however.

  4. Alan, how terrific to hear from you – are you still with DNI?  Hope all is well with you.  

  5. Folks,

    Check the fine print of the MCA and the current U.S. Code. Article 21 (10 USC 821 – relied upon in Hamdan) was amended to remove the requirement that MCA Commissions comply with the laws of war. In a prior article, I argued that this amendment requires the applcation of the later-in-time rule rather than the Charming Betsy canon (the latter was applied by Hamdan’s commission in its final jurisdictional decision).

    In my opinion, step 1 for making the MCA constitutional is to delete that amendment. Will elaborate in the future.

  6. John,

    The MCA cannot be made Constitutional:

    1) It improperly authorizes attainder by executive fiat.

    2) It improperly strips the Article III courts of their jurisdiction in all cases of law and equity.

    Finally, Congress has no authority to commit war crimes, and Hague IV 1907, the IMT Charter, and Geneva 1949 are non-derogable. There simply is no way these ad hoc commissions could ever be lawful, because they were never anything but war crimes from the start.

    Further, there is absolute no pragmaqtic reason for military commission, and if you want to tell me something, you might try answering this:

    For me, the key point of the President’s National Archive speech came when he claimed that there were some war crimes that could not be charged as crimes under either Title 18 or Title 10. That was the claim of the Bush administration, and it was absolute false from the start.

    So here’s the question — can you actually describe any such crime related to 911?

    My claim is that any set of facts you describe will either:

    1) fail to describe a war crime (training with the Taleban for example), or…

    2) constitute an offense pursuant to Title 18 and probably Title 10 too, as they existed on 2001.09.10.

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  8. Ken –

    Thanks for your personal greeting.  I have responded off line.  I am including here a relevant excerpt from that response.  My comments to you and below concerning law, lawyers and policy relate as well to the substance of a comment I just made to Duncan Hollis’s post on the syber security review as well.


    While I do not wholly adopt Charles Gittings oft expressed view that all of the lawyers who did some of the work now so much in controversy did so in bad faith or are war criminals (though I think the circumstantial evidence speaks for itself), I do tend to fall in line with the views expressed by Will Taft IV, in a speech published at 31 Yale Journal of International Law 503 (2006) at pages 507, 509 and 510.

    I commented to that effect in a comment to Opinio Juris on 6 Feb 2009.  I insert the relevant portion below. 

    The point made there, similar to what I was trying to say in my comment the other day, is that the lawyers too often do not know or care to know the policy context into which their legal advice must fit, and this deficiency, when it exists, can permit legal views developed from a tactical point of view to drive policy in dysfunctional ways.  We should understand the policy — the national security policy in its broadest scope — first, then the strategy, and then provide the legal analysis, in my opinion. 

    Too often, lately, it has seemed to me, we have allowed considerations of trial tactics or desired litigation outcomes concerning cases in controversy to drive national security strategy, instead of vice versa; or, and equally unhelpfully, we have permitted concerns over executive authority to trump other national security objectives, again with negative results (Goldsmith’s book gets at this). 

    I have become increasingly convinced, despite protestations to the contrary by many colleagues in gov’t, that all law is policy, and so therefore to have unity of effort in strategic and policy implementation, we must have conceptual unity with regard to our interests, their relative priority, our strategic objectives, and our means of accomplishment. 

    When the establishment of legal norms becomes a strategic objective, as it often is and should be, that objective must be consistent and aligned with related and perhaps competing strategic objectives.  Kennedy’s book, “On Law and War,” which I commend to you if you haven’t read yet, does a good job illuminating the implications of this concept. 

    When strategies designed to establish legal norms conflict with or even undermine other national security strategic objectives, we must triage, balance, choose and align.  I would argue that our failure to do that during the Bush years continues to hurt us and limits our current options in regrettable ways.  The subject of the post upon which I comment here is an example.


    “It was the lawyers from the Department of Justice who pressed for a determination that the Conventions and other standards of international law and practice did not govern the conflict.  Bearing an abstract hostility to international law, developed in the sheltered environment of academic journals, and equally unfamiliar or unconcerned with our broader policy interests in promoting respect for the rule of law among states as well as within them, these lawyer s proposed to create a regime in which detainees were deprived of all legal rights and the conditions of their treatment were a matter of unreviewable executive discretion.   Why lawyers, of all people, should want to establish the point that such a lawless regime could legally exist, even as a theoretical matter, much less recommend that one actually be created, is, I confess, beyond me, and in itself a sad commentary on the extent to which sophistry has penetrated what used to be widely regarded as an honorable and learned profession.” p. 509

    “The nation’s foreign policy upon which our liberty and prosperity depend, then, instead of being the product of careful review of our national security requirements, our relations with other states, and our long term interests, became simply the occasion for lawyers with but slight experience in and no responsibility for these matters to obtain official endorsement of an exotic legal proposition.  Even if the proposition had been correct, which the Supreme Court determined it was not, this abstract exercise would have been a mistake.  Of course, it’s  important to know what the law is, but it’s even more important to know what it is in your interest to do.  When you know that, it is time to ask the lawyers whether it is lawful, and if it is, you go ahead with it.  This is the way foreign and national security policy have generally been carried out in the past . . .”

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  1. […] Juris’s Deborah Pearlstein draws out the major elements likely to be in legislation on Guantanamo Bay following President Obama’s speech last week. Any proposal is likely to be complicated by the […]