American’s Panel Discussion on Guantanamo

Cross-posted at Balkinization

It felt like a lively discussion Friday at the panel hosted by American University scholar Dan Marcus on “Guantanamo Detainees – What Next?” (Many thanks to Ken for plugging it earlier in the week. I take it the session will at some point be available among webcasts on the law school website.) Jack Goldsmith gave a keynote address to a very full house, and then Bobby Chesney (UTexas), Steve Vladeck (American) and I had a chance to respond and interact. It felt a little like old home week with folks like Gene Fidell, Marty Lederman, Geremy Kamens (Hamdi’s defense counsel) and Ken Troccoli (Moussaoui’s defense counsel) in the audience. Good to see everyone, and thanks to all for an engaging conversation.

For those of you who’ve been following this for a while, I’m not sure we broke any major new ground, but a few points may be worth mentioning. Jack Goldsmith is no longer arguing in favor of a statutory fix to the Guantanamo problem in the form of a clearer AUMF-type authorization. As he rightly notes, the D.C. courts have now in key respects answered questions of what habeas hearings look like procedurally, and even who may be detained. I hardly agree with the courts’ answers in all these respects, but I wholeheartedly agree that congressional involvement at this point to try to “clarify” the law in those habeas cases would only set back the litigation clock another 8 years. We were also quite in agreement about many of the deficits of the military commissions. And there was vigorous, bipartisan consensus on the panel about Congress’ foolhardiness – either as a matter of constitutional power or as disastrous policy or both – in trying to prevent the criminal prosecution of any of the Guantanamo detainees under any circumstances.

On the subject of Congress’ attempts to prohibit the transfer of Gitmo detainees to the United States for trial, a number of people in and outside government have floated the idea of creating D.Gtmo – bringing Article III judges to Guantanamo to hold federal criminal trials there. The question was raised again Friday. (Feel free to out yourselves in comments, I just didn’t want to do it for you without asking.) The notion is that detainees might waive jury trial (so avoid the deeply problematic question of how to get impartial civilian jurors to Gitmo) in exchange for an actual prosecution of some kind. And there is (Steve Vladeck notes) at least some, albeit equivocal precedent for the idea of creating a federal district of sorts outside the territorial United States. It’s a creative suggestion, and in principle I don’t much care where Article III trials are held as long as they involve Article III judges and Article III process. But this proposal, like everything with Gitmo, comes with its own set of problems. First and probably most problematic, one would still need congressional authorization. Perhaps the politics of trials at Gitmo are different from the politics of trials in NYC. Hope springs eternal. Then there must be some question of venue, which as Padilla reminded us, may actually matter from time to time. And there is also the dilemma of detainee incentives. Detainees have done quite well for themselves overall in reaching plea agreements under the military commission system, achieving rather minor sentences compared to the equivalent defendants facing federal courts. (Only one of the ironic features of Congress’ preference for commissions over courts.) Defense counsels’ relative success in this regard hardly makes the outcomes legitimate. Among other things, commission defendants may be pleading “guilty” to offenses that don’t actually exist as war crimes under international law. But if they can get a lesser ‘sentence’ in commission bargaining than in criminal plea bargaining, why would any defense attorney recommend that her client waive jury trial to get access to the potentially more punitive federal courts?

To my ear, the single area of most apparent disagreement was on the question of the need for some additional, military detention power going forward. That is, setting aside the thorny dilemma of how to resolve the unique mess at Guantanamo Bay, aren’t we losing something as a matter of policy, or creating incentives (to kill rather than capture) if we don’t find some source of authority more robust and enduring than Congress’ 2001 Authorization for the Use of Military Force to enable the ongoing detention of international terrorists? A fair and important question. I’ve written about this a lot before e.g. here and here and at the panel today, so I won’t rehearse my arguments again. For what it’s worth, I argued Friday I don’t think we are losing much.