Detention Post-Gitmo II: A Surreply to Steve Vladeck

Thanks to Steve Vladeck for his thoughtful response to my critique of his paper posted earlier this week. In great sum, Steve has a paper out proposing that the United States hold the remaining Gitmo detainees in the United States under a domestic immigration detention statute to ease the way for Congress to repeal the AUMF statute (under which authority the Gitmo detainees are currently held). I advanced several legal and policy arguments against the proposal. Steve’s post yesterday is a response to my concerns. While I think my original post still speaks for itself, I did want to clarify a few points I think Steve’s characterization of my argument obscures.

First, Steve suggests that my argument assumes “that countries will be lining up to receive” the Gitmo detainees this administration has identified as unprosecutable but “too dangerous to release.” My claim was actually quite a bit different – namely, that it was likely that “at least a fraction” of the 4 dozen “too dangerous to release” detainees might be repatriated by their home countries if the United States sought to return them. It’s important to caution here that of course both Steve and I are laboring in the dark; the administration has not made public information about which 4 dozen detainees it thinks falls into this category or why. But let’s imagine for the sake of argument the number is only 1 of the 4 dozen who could be repatriated. Why does it matter to my concern about Steve’s proposal? To see that, let’s play the proposal out.

Here’s the scenario: Congress has lifted the statutory prohibition against the transfer of Gitmo detainees to the United States. (This move is a necessary precondition for Section 412 to apply at all – it kicks in only once aliens are in the United States.) The AUMF is repealed. In order for Section 412 to apply at all, the administration will have to institute removal proceedings for all the detainees to have any lawful basis for continued detention of any of them. Under current policy as I understand it, all detained immigration removal proceedings (i.e. removal proceedings carried out while the potential deportee is in custody) are to be expedited, meaning an initial appearance 2-3 weeks after the beginning of immigration detention. Now imagine Detainee X (of the 48) concedes his removability, for example, by admitting yes indeed I endorsed/espoused whatever Al Qaeda said. Let’s further imagine his home country says (for a variety of reasons), “Sure, we’ll take him back, here are diplomatic assurances he won’t be tortured.” Section 412 proceedings are now over; they’ve taken about a month. The U.S. government now has no further legal basis for continuing to hold Detainee X. He is able to be deported, and Section 412 detention authority lasts only until this deportability condition has been met. This is the case even if Detainee X’s home country is politically unstable, and has made no promises about continuing to detain him there or about taking any other security measures. It is conceivable Congress could amend Section 412 further to authorize preventive detention under more conditions than just deportation; but this is a broader preventive detention statute than Congress has been willing to authorize in the 13 years post-2001, and it would pose novel and serious constitutional questions about an expansion of immigration detention authority outside of armed conflict that the Supreme Court has never upheld. As it stands then – and given the administration has said Detainee X is too dangerous to release anywhere – my point was that it is hard to imagine that the rapid release of Detainee X – even a release overseas – is an outcome this administration (or any administration) in good faith wants to seek.

Second, Steve accuses me of having offered no better alternative than the status quo. To that I plead more or less guilty. My original post actually offered no alternative proposal at all, it merely suggested we evaluate Steve’s proposal by considering whether his option is “better than, for example, letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities.” For reasons I stated before, I continue to think Steve’s option isn’t clearly better than the currently existing alternative. But I also think it fares worse when compared to other alternatives (not just the status quo) one can imagine.

Suppose, for example, the AUMF stays on the books for now, and the administration finally succeeds in persuading the Congress to do the one thing it has tried to do from the beginning: allow the Gitmo detainees to be transferred to a detention facility here in the United States. As heavy political lift as that is (impossible so far, and especially hard to imagine now in the 6 months before midterm elections), it is still presumably easier to accomplish than moving them here and also repealing the AUMF. On the upside of this scenario, Gitmo is closed – no small matter itself. From that, we may hope to glean some modest diplomatic benefit from taking a key step forward, some modest strategic benefit from the removal of a uniquely destructive symbol, and some increase in domestic political urgency to return those many dozens of detainees who have long since been cleared for release.

Downsides of course, (1) there are still dozens of men in long-term detention and (2) the AUMF is still (for now) on the books. Take each in turn. For the detainees, conventional wisdom holds (with good reason) that their conditions of confinement would be quite a bit worse in standard domestic federal Supermax prisons than they are at Gitmo currently. But with the AUMF still on the books, there would be Geneva-based arguments about what conditions their continued detention (by the Defense Department) must satisfy. We’d still have a president motivated– and working – to get the majority sent home, with processes extant (an administrative review system, along with repeated habeas petitions) to check that progress (at least marginally). We’d also I think have growing pressure from the courts (no matter who’s president); the more time passes, the stronger the argument becomes (depending arguably some on the detainee) that hostilities are over and the AUMF no longer authorizes their detention. (And Section 412 remains as the kind of limited backstop it was intended to be if the courts do conclude the AUMF no longer applies in a particular case.) In short, for the detainees themselves, we’d be essentially where we are now – and arguably better than where we would be under the Section 412 theory in which they are held in federal civilian custody – with some of them in long-term detention subject to best efforts and increasing pressure to send them home.

That leaves the continued existence of the AUMF. As much as I embrace the President’s call to move to a post-war counterterrorism framework, I am not at all sure the significant legal and policy costs associated with Steve’s proposal (some I’ve identified, some Steve himself has) will change enough about U.S. policy in the coming two years to be worth it. Under the current administration, the use of the AUMF as a source of detention authority has diminished dramatically. It has been used for detention outside of Afghanistan on a tiny handful of occasions and for limited time periods before criminal prosecution. (The success of the criminal system in handling these cases, coupled with the absence of an off-shore facility in which to house detainees, will make future use of the statute for detention purposes trickier for any future administration as well.) The greater issue with the AUMF’s continued existence is I think targeting; it remains as a literal loaded gun for use against “associated forces” of our enemies (whomever and wherever they may be). Here, too, we have seen a significant drop in the frequency of U.S. drone attacks over the past year or so, as the security community itself has started to recognize the tremendous political, diplomatic, and strategic counterterrorism costs associated with the heavy use of lethal targeting outside Afghanistan. More important, the key concerns about the AUMF center not on the existence of targeting authority per se (no one denies it is sometimes permissible for states to use force in other states), but on how and against whom it is used. Amending the AUMF to impose or clarify limits on the scope of the targeting authority permitted under that statute going forward could in principle address these significant concerns – while avoiding creating new statutory and constitutional dilemmas to resolve. Such amendments, too, would involve a very tough legislative lift – but still I imagine an easier one than would be required to secure not only the necessary amendments to Section 412 noted above, but also flat-out repeal of the AUMF.