Delayed Detention Policy and the Big “Ifs”

by Deborah Pearlstein

Cross-posted at Balkinization

UPDATE: The task force’s interim report is here. A related protocol on how cases to be prosecuted will be handled is here. Thanks SCOTUSblog.

Among the many stories out today about the Administration’s decision to postpone the final reports of its task forces on detention and interrogation policy, Isikoff’s in Newsweek and Gerstein’s in Politico seem to shed most light on current thinking. (I say that with the immediate caution that all of these reports about internal deliberations should be taken with a large grain of salt; media reports of the same background briefing by “senior administration officials” yesterday offer impressively varied accounts of what the thrust of the briefing actually was.)

So what’s going on? Recall that President Obama issued a related set of executive orders on these issues just after taking office: one ordering the closure of Guantanamo in January 2010, another creating a task force to review all the cases of Guantanamo detainees to determine what should happen to them (prosecution, release, some other option), and two others creating separate additional task forces to figure out what to do about detention policy and interrogation policy more broadly. The detention and interrogation policy task forces had been due to issue their findings today. Last night, the administration announced it was extending the detention review by 6 months, and the interrogation review by 2 months.

Is the delay of itself cause for concern? I tend to think not much. The original executive orders contemplated that the task forces could seek extensions if they needed more time. The issues on the detention side especially are dauntingly complex. One might imagine that detention policy writ large should be informed at least in part by as detailed an account as possible of who turns out to be at Gitmo just now; and the separate task force reviewing the Gitmo cases is only about half finished, according to the administration. It would of course be better if the Gitmo case reviews and dispositions moved faster; the dozens of detainees now cleared for release have been waiting far too long already, and Congress’ current refusal to allow any into the United States has only made matters worse. (Indeed, the administration will need Congress’ help in lifting this restriction, and I’m guessing they think now’s not a good time to ask members for a non-health-care-related favor.) But as long as progress toward the closure of Gitmo continues – and there are various indications that it is (including the relatively rapid progress on the Hill so far of legislation to reform the Military Commissions Act) – it cannot be said that there is any change in the bottom line announced when Obama took office. The January 2010 closing deadline has always been a tough one to meet. But nothing that happened in the past 24 hours has made it any tougher.

So what’s of interest in the news reports? Among other things, two modestly encouraging signs. First is the suggestion by “officials” at the briefer who Gerstein has: “signal[ing] their intention to try to separate [the Guantanamo] issue from the broader issue of whether the U.S. should have a preventive detention law that would govern war-on-terror prisoners currently held in Afghanistan as well as those who may be picked up in the future.” I’ve written at length about why I think it critical to address these separate problems separately, but it amounts to not letting hard cases make bad law. We’ve tortured some of the Gitmo detainees, we denied them first-order Geneva Convention protections, we detained them for years without giving them any indication they have any rights (or hope of release), we lost evidence – the list of reasons why we have few options for some at Gitmo is long, and it is the result of actions by the previous administration. For this administration, the best one can hope is to not prolong the problem, and limit the extent to which any particular case at Gitmo can be used as precedent for detention law and policy going forward. It remains to be seen whether the “signalers” who embrace this approach will prevail over the “officials” Isikoff finds who seem to hold a different view. (As he reports: “[T]he task force has not been able to reach a consensus on key issues—among them whether indefinite detention will only apply to detainees currently at Guantánamo or whether new prisoners captured in counterterrorism operations around the world can be similarly held without trial.”)

Second are hints about where the administration would seek to find legal authority for any ongoing detentions. Both articles report that the administration is now contemplating relying for any continued detention authority on the existing 2001 Authorization for the Use of Military Force – the decision it in effect was forced to make much earlier in litigating the Gitmo habeas cases now pending in federal court, and a decision that would require no new legislation from a Congress whose track record on Gitmo-related legislation is far from stellar. It has been established since the Supreme Court’s 2004 decision in Hamdi that the AUMF contains at least some implicit detention authority for the conflict in Afghanistan. The AUMF is hardly a model of clarity, but for reasons I’ve previously discussed, this may well be the least worst of the set of only-bad options remaining for how to end the nightmare at Guantanamo Bay. If there are any detainees at Gitmo who cannot be lawfully prosecuted or should not be transferred or released – and that’s a sizeable “if” given the administration’s own review of the Gitmo detainees is not yet complete – and if any of them has been engaged in the ongoing armed conflict in and around Afghanistan, then there is a passable argument under the AUMF and international law that would permit their continued detention for a limited duration (subject, of course, to a host of procedural protections including the constitutional right to habeas corpus). If this is where the administration is headed – as opposed to seeking some broad new “preventive” detention authority from Congress as some have discussed – then I’m prepared to wait a few extra months to get there.

http://opiniojuris.org/2009/07/21/delayed-detention-policy-and-the-big-ifs/

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