The Gitmo Task Force Report

by Deborah Pearlstein

Cross-posted at Balkinization

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?

6 Responses

  1. Just in case the laypeople don’t recognize a rhetorical question, there is no such law.

    That does not prevent kidnapping victims such as Jose Padilla from being sentenced to lengthy jail time for nonexistent thought crimes, however.

  2. “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.”

    The Geneva Conventions do not authorized armies to take enemy combatants as prisoners of war. They kick in only after such persons are detained, and then protect individuals during their detention by controlling their treatment. Although anyone who meets the criteria of Article 4 of the Third Geneva Convention is also someone who can be lawfully detained as an enemy combatant, holding someone who is not an enemy combatant under the pretense that his is a prisoner of war is not remedied by also granting him Geneva protection. Denying an enemy soldier his Geneva rights may be a crime in itself, but it doesn’t effect the authority under which he is detained in the first place. There is, however, a category of combatants, members of armed units of a non-state party to a non-international armed conflict engaged in continuous combat function, who are subject to detention under the laws of war but are not entitled to protection by the Geneva Conventions.

    In several places the report clearly says that all 48 of the retained detainees can be held under the AUMF and the laws of armed conflict. That means that the authors of the report are satisfied that the requirements for continued legal detention have been met although they are not enumerated in the report.

    The four criteria you list are introduced as:

    “the detainees designated for continued detention were characterized by one or more of the following factors:”

    Thus the four factors indicate why they are designated for continued detention instead of, for example, being released for repatriation to their home country. In that context, someone who could be legally detained under the laws of war but who is no longer regarded as a security threat might be released, while someone who also could be legally detained under the laws of war but expressed recidivist intent would be held. There is nothing in the language of the report indicating that recidivist intent by itself is a legal basis for detention, although once that legal basis exists from other factors, then an intent to return to the battlefield and kill Americans is a good reason not to release someone prematurely.

  3. In several places the report clearly says that all 48 of the retained detainees can be held under the AUMF and the laws of armed conflict. That means that the authors of the report are satisfied that the requirements for continued legal detention have been met although they are not enumerated in the report.

    Oh, those laws.

    The next question might be, how can a person with no criminal record of any kind be at risk of recidivism?

  4. Deborah,

    I am just thinking out loud.  Do you think there is a potentially interesting twist on Ken Anderson’s self-defense thesis at play in Category 3? 

    The report states that all 48 were “approved for continued detention under the AUMF” because they “pose a national security threat” that cannot be mitigated if released.  I am uncertain whether it is fair to assume that those falling in this category do not fall into one of the others.  It is hardly a meaningful category on its own.  The report says that those in this group “were characterized by one or more of the following factors.”  Category 3 says it applies when there is “intent to reengage in extremist activities?”  This is obviously very broad and vague.

    Picking up on (my understanding of) Ken’s thesis, if we can target and kill those who present a continuing threat to the U.S. or its nationals (without regard to IHL — so the thesis goes), may we detain them?  I certainly agree that the law justifying such detention is difficult to identify.  Is it possible that the AUMF authorized targeting and detention of individuals even outside the context of armed conflict and without regard to other constitutional constraints?  I’d be interested in your take.

  5. I have to apologize for my bad English first.

    I was never good at formulating English sentences, but I’ve thought about the disputes concerning the interpretation of the Constitution in the United States.

    But I’ve been thinking about the disputes concerning the interpretation of the Constitution in the U.S. and was somewhat surprised about the possibility of “jurisdiction stripping” under the U.S. Constitution. Such a thing would not be permissible under the German Basic Law, which contains the so-called “legal process guarantee” (“Rechtsweggarantie”) granting access to the courts for review of all governmental action ( (with only one exception mentioned in the last sentence of Articel 19: the monitoring of correspondence and telecommunication concern if the surveillance was approved by a committee of the Parliament).
    I was frankly surprised that this is not clear in the U.S. (just like the protection of the “Habeas Corpus Rights” and the right for a civil trail even for an own citizen who is not a member of the military) but that is an other topic).

    So I was thinking about how a solution might look like, and have formulated the following proposal for a constitutional amendment (it is probably come across as full of grammatical errors and awkward wording, but the meaning should be clear):

    “Congress shall make no law concurrently removing the jurisidiction of inferior Curts created under Article III and the appellate jurisdiction of the Supreme Court over categories of claims for wich jurisdiction is mandatory granted to the judiciary as a whole by Article III. Exceptions can be determined by a law of congress, whose validity is limited to a maximum of five years after its coming into effect.

    Congress shall make no law which deprives the Supreme Court the jurisdiction to hear appeals relating to the writ of habeas corpus or the rights or provisions which are mentioned in the 1 st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th or 10th Amendment to the Constitution . The last sentence does not prevent a suspension of the writ of habeas corpus in times of invasion or rebellion.

    An Act of Congress may determine such regulations in violation of the provisions of this Amendment like they exist before entry into force of this Amendment.”

  6. I apologize if i was a little bit off topic…

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