Cross-posted at Balkinization

Ok, the headline is a bit misleading. It’s only two justices – Scalia and Thomas – who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here, and he includes a link to Justice Thomas’ 15-page opinion, which is itself well worth a read. Heck of an opinion.

In essence, Justice Thomas (joined by Justice Scalia) argues that the Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United States from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an “armed conflict” within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega’s criminal sentence is now over, and he is arguing – in a collateral petition for habeas corpus – that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.

Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court’s decision to deny cert. The Court should’ve granted review to “provide much-needed guidance” on issues “with which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court].” As Justice Thomas notes: “It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the Government years of unnecessary litigation.” Why would this case have any relevance for the Gitmo detainees, none of which to date has been designated a “prisoner of war”? Because, says Justice Thomas, one of the government’s arguments before the 11th Circuit below was that Noriega’s claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer “invoke” Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.

I’ve written elsewhere about some of the many problems surrounding Section 5 (including its implications for the “judicial power”), so won’t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court’s engagement in the case, the dissent opens by invoking Marbury v. Madison itself: “[I]n our tripartite system of government,” it is the duty of this Court to “say ‘what the law is.’” When was the last time the Court’s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its “war powers,” so to speak? Guess it’s all about the judicial power now.

Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late – so as to further demonstrate, I take it, that the political branches would benefit from the Court’s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don’t actually address the question of Section 5’s validity presented in this case), the opinion mentions the President’s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the “minimum baseline” for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering – but has not yet actually acted upon – other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation “invoking” Geneva to challenge the President’s decision to recognize detainees’ entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone’s old thought about how the Court wasn’t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it’s time to revisit that question.

In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court’s ability – through evaluating the validity of Section 5 – to shed light on “the contours of the substantive and procedural law of detention” affecting the Gitmo detainees that the Court left vague after Boumediene. True enough, Boumediene did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts – and the Administration – have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts’ understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions – as an aid to interpreting a federal statute – seems at least arguably different from the reliance Congress aimed to target in Section 5 – namely, detainees invoking Geneva as a “source of rights.”

In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he’d still lose on the substance of his claim that he can’t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega’s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There’s just no winning claim here. Add to that the uniqueness of Noriega’s particular circumstance - his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General’s own, traditionally weighty, opposition to the Court’s taking the case – and one has a classic case for cert denial. I suspect it’s a good thing a majority of the Court agreed.

Cross-posted at Balkinization

The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.

There a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.

Before embarking on its analysis of who may be detained under the AUMF, the panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.

Then there’s the matter of the accuracy of the panel’s sweeping – and gratuitous – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

Cross-posted at Balkinization

Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not perfect) military commissions. White House Counsel Greg Craig resigns, over many, rightly disputed accusations that he should have resolved the 8-years-in-the-making Gitmo mess in his first 365 days.

In case those stories don’t give you enough to digest, you might have also done well to catch a series of administration officials (among others) talking about military commissions and the like on panels yesterday and today at the ABA’s Annual Review of the Field of National Security Law in Washington, D.C. (Full disclosure: I did a military commissions panel with Robin Jacobsohn, Deputy General Counsel at DOD; Col. Mary Perry, Director of the Operations and Int’l Law Division at the Air Force TJAG’s office; Scott Silliman of Duke and Jonathan Hafetz of the ACLU. ) You should also probably read yesterday’s white paper from the Center for American Progress think tank (CAP) in D.C. arguing, inter alia, that the remaining Gitmo detainees who may lawfully continue to be held under the AUMF and laws of war should be transferred for continued detention to Bagram Air Base in Afghanistan. And that if you want to know how the Afghans are doing in preparation for taking over detention and trial operations themselves one of these days, two new Human Rights First reports on U.S. detention operations in Afghanistan are certainly worth reading, available here and here. Hint: Not so well.

For the moment, I’ll stick with today’s blockbuster prosecutions announcement. The decision to pursue the highest profile prosecutions of the 9/11 co-conspirators like Khalid Sheik Mohammed in federal criminal court in New York is wise, welcome and long overdue. We have prosecuted the likes of KSM in federal court before, we can do it again. The decision to use military commissions – improved though they may be – is, as I’ve written here before, a greater gamble.

As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited. As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998. See, e.g., here (scroll down). Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.

There may be an available legal theory that explains the decision making here. But I didn’t quite get an answer to any of this from my thoughtful co-panelists from the Administration today. In all events, for these, among many other reasons, the Administration will have a long road ahead of it as it pursues commissions.

From our friends at George Washington Law School:

The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc) format and include a copy of the book-review author’s curriculum vitae. Please send submissions and any inquiries to Dana Parsons at dparsons [at] law [dot] gwu [dot] edu.

Cross-posted at Balkinization

Here follows a revised version of the blog I posted earlier today. It turns out the final version of the legislation that passed the House was largely untouched after all.  The full text of the mammoth Defense Authorization Bill in which the military commissions legislation is included is available here; the military commissions provisions are found beginning at p. 979.   Serves me right for trusting any old email attachment headed “Military Commission Legislation as Passed.” My sincere apologies to readers.

The revised take is somewhat more favorable: Unlike Congress’ incoherent efforts to prohibit the transfer of Guantanamo detainees to the United States for trial (which for the moment appear to have failed), and Lindsay Graham’s (similarly incoherent and now unsuccessful) efforts to require that certain detainees be tried in military commissions even if they could be prosecuted in federal criminal court (the opposite of the way the Supreme Court has traditionally understood military courts of necessity to work), the new military commissions legislation remains a mixed bag. It has some good changes, some not so good, and some provisions whose impact will have to be determined in practice.

In something of a surprise move, the Supreme Court decided today to grant cert in Kiyemba v. Obama – an enormously important case about whether or not the federal courts have the power to order Guantanamo detainees (whose writs of habeas corpus have been granted) released into the United States. The NYTimes story is here. The Justice Department’s statement on the grant is here.

From The Times story:

The case concerns 17 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.

Last October, a federal judge here ordered the men released. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

An appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the justices acted on it now. The Obama administration has sent some of the prisoners to Bermuda, and Palau has said it will accept most of the rest. But one prisoner apparently has nowhere to go.

The prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.

The case presents the next logical legal question in the series of detainee cases to reach the court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

I feel as though I should start by apologizing from my mini-blogging hiatus. Nothing like prepping a new course to distract one from the trials of law outside the classroom.

Thanks to my Opinio Juris colleagues Julian Ku and Ken Anderson, as well as Ben Wittes, among others, there’s ample reason for re-engaging.  As Julian and Ken have noted with approval, Wittes wrote in the Post this week to attack the Obama Administration’s apparent decision not to seek new “preventive” detention legislation as it goes about the necessary business of closing Guantanamo. The essence of Wittes’ critique is the thesis he’s pursued in more than one book over the past few years: If we’re going to be in the business of counterterrorism detention (as surely we should be), far better to have the contours of those rules (who may be detained, and pursuant to what set of procedures) set forth in clear legislation, rather than settled piecemeal by the courts. Not to do so at this stage, according to Ben, amounts a presidential endorsement of the views of Dick Cheney.

Here’s why I continue to think that Ben is wrong, that the President is right, and that the actual Dick Cheney approach just suffered another blow.

Among many administration doings on the human rights front this week, the Senate this week voted to confirm Mike Posner as Assistant U.S. Secretary of State for Democracy, Human Rights and Labor. Mike had served as executive director at Human Rights First (formerly the Lawyers Committee for Human Rights) for decades since its founding, and is as steeped as anyone in the full breadth of current human rights challenges in the U.S. and abroad. (Full disclosure: he’s also my former boss.) For the record, here’s the email Human Rights First sent to its mailing list announcing the confirmation, from Elisa Massimino, the current executive director.

Well, it’s official. Last night the Senate voted to confirm Mike Posner as Assistant Secretary of State for Democracy, Human Rights, and Labor. Today, after 31 years at the helm of Human Rights First, Mike starts on a new journey, taking up the challenge that President Obama and Secretary Clinton have given him to guide U.S. human rights policy and restore U.S. leadership and commitment to the rule of law. I can’t think of anyone better suited to meet that challenge than Mike.

As Mike steps onto this broader stage, he knows we are right behind him—to encourage him, to support him, and to press the United States to live up to its ideals and commitments to respect human rights here at home and around the world. Someday, he may regret that he trained us all so well—but I have a feeling that will make him smile.

Last week, as the staff at Human Rights First toasted Mike in anticipation of his impending confirmation, Mike’s parting words underscored for all of us why he has been able to make such a difference in the world over so many years: “It’s about people.” That has made all the difference, both for those of us who have been privileged to work for him, and for the wider world. Mike never forgets why he is in this fight—to be a voice for the voiceless and to protect the vulnerable, whose lives are in the balance.

Mike takes that profound commitment, which has guided him throughout his career, into a new realm today. We are incredibly proud and excited for him as he takes up this new challenge. I hope you will join me in celebrating Mike’s accomplishments and wishing him the best for the challenges that lie ahead.

As usual, Laura Rozen (now at Politico) is on top of the latest international law news at Foggy Bottom. Columbia Law Professor Sarah Cleveland has been appointed Counselor on International Law in the office of State Department Legal Advisor Harold Koh. According to an email circulated by the school’s dean announcing the appointment, Cleveland will “help develop the State Department’s position in U.S. litigation involving international and foreign relations law issues, including human rights cases in U.S. courts,” and (critically) help State, DOJ, and the White House coordinate on these issues. Professor Cleveland’s 2006 piece in the Yale Journal of International Law, “Our International Constitution,” is still the most comprehensive work I’ve seen on how to think about the relevance of international and foreign law to U.S. constitutional analysis. As with Harold Koh, she is superbly well qualified to take on what remains an extremely full plate of issues. Great news all around.

I was all set to zone out this vacation when we happened to stroll passed an SUV featuring one bumper sticker (among others) announcing: “Waterboarding: Keep it safe, legal and rare.” Nothing like a little vacation motivation to make me peruse (at an admittedly slower pace) the wave of old OLC that came along with the 2004 CIA inspector general’s report and other CIA memos that documented in brutal detail exactly what we were doing to prisoners of that era.  While I haven’t come close to reading everything yet, I’d say the most remarkable memo I’ve encountered so far out of DOJ is one of far more recent vintage: a July 20, 2007 from then Principal Deputy Assistant Attorney General Steven Bradbury to John Rizzo, Acting CIA General Counsel.

Cross-posted at Balkinization

UPDATE: The long-awaited report by the CIA Inspector General completed in 2004 and kept secret since has now been released by the Administration. The memos former Vice President Cheney says demonstrate the efficacy of torture in eliciting information are also now available. Note the Cheney memos are heavily, heavily redacted and it is impossible to tell how the information they described was obtained from detainees.

Today’s news that the Attorney General has decided to appoint a prosecutor to investigate some of the most egregious acts of torture committed by the U.S. government after September 11 will I hope be greeted with some praise by the human rights community, and by the many Americans who have sought some accountability for the most notorious acts of abuse. To be sure, the prosecutorial hurdles in these cases remain substantial, so it is unclear what if anything will ultimately result. (Among many other things, years have passed since some of the most troubling detainee deaths in custody. A report I worked on a few years back reviewed thousands of pages of FOIA’d government documents and concluded that nearly 100 detainees had died in U.S. custody as of 2006, at least 8 of whom had been, by any definition, tortured to death.) It also remains unclear just what the scope of the investigation will be, what it might become, and what else might be done (outside the criminal justice system) to gain and assimilate lessons learned from U.S. detention and interrogation operations in recent years.

For these among other reasons, I think today’s announcement is better understood as a modest victory for the more general (call me quaint) notion that there remains a meaningful distinction between power politics and law. It may well be that the Administration will take at least some kind of political hit for the decision of its Attorney General. Could be the hit will be in lost votes on the Hill. (Ubiquitous health-care-negotiator Senator Grassley (R-IA) is among those who have been vocal in opposing further investigation.) Could be any impact will be tempered (for better or worse) by other, more pressing items on the Administration’s political agenda. Either way, given the President’s repeated statements following the election that he wished to look forward, not back, on questions of accountability for torture, it seems likely the President wouldn’t have picked just now, in the midst of the health care fight of the century, to go down this road if he could avoid it. As it turns out, though, today’s news suggests that it is possible to have a President who actually believes in the prosecutorial independence of the Attorney General. And an Attorney General who actually believes in the law. If reports are true, it’s one good step. We’ll see what comes next.

Controversy continues to surround John Yoo and the memos he wrote while a Justice Department lawyer that were used as the legal basis for torture in U.S. interrogation operations. Under the circumstances, I thought it appropriate to reprint here an email recently circulated to UC Berkeley faculty, administration and students by Dean Christopher Edley of Berkeley Law School. (Happy to hat tip the sources who passed the email along, but I’ll defer for now in case they’d prefer to remain anonymous.) Dean Edley is responding to substantial public protests surrounding Professor Yoo’s return to his tenured professorship in law at Berkeley. In the interest of full disclosure, I should say I am grateful to have had Chris Edley as a professor when I was a law student. Far more to the point, however, I thought the email was thoughtful, important, and worth consideration. It’s reprinted in its entirety below.

Cross-Posted at Balkinization

Following my testimony last month to the Senate Judiciary Committee’s Subcommittee on Terrorism and Homeland Security on military commissions and the like, Senator Kyl (R-AZ) was kind enough to send along some follow-up questions to answer. His first follow-up question was one of the same as one he’d posed in the hearing itself: What if any empirical evidence is there to support President Obama’s statement that “the existence of Guantanamo likely created more terrorists around the world than it ever detained.”

It’s a fair and important question – one it’s likely the President is in a better position to answer than I. Nonetheless, it gave me occasion recently to start compiling some of the reports I’ve found most persuasive over the years that led me to conclude the President’s view had merit. For your summer reading entertainment (and before Congress comes back and starts back-pedaling the otherwise sweeping bipartisan consensus in favor of closure again), I thought I’d start a list here. If folks have other sources they’d like to recommend, or of course comments either way, feel free.

• Matthew Alexander’s statements are pretty powerful. A veteran Air Force counterintelligence agent who served as a senior interrogator for the United States in Iraq, Alexander wrote: “I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse.”

• Alexander wasn’t the first to say as much. On June 17, 2008, former Navy General Counsel Alberto Mora testified to the U.S. Senate Committee on Armed Services as follows: “[T]here are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

• In 2008, McClatchy news service published a detailed series of reports on the Guantanamo Bay detention program that it based on interviews with U.S. officials, foreign intelligence services, and former detainees. The reports concluded, among other things, that “instead of confining terrorists, Guantánamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists.”

Although this is pretty far from my usual focus, I’ve been interested to see the August D.C. doldrums filled in part with an interesting emerging discussion of what happens next with the U.S. and the International Criminal Court (ICC). Secretary of State Hillary Clinton expressed her “great regret” in Kenya last week that the United States hadn’t yet ratified the treaty. But as former State Department Legal Adviser John Bellinger argued in a Washington Post op-ed this week in response, it remains unclear how the Obama Administration will be able to overcome some of the remaining stumbling blocks in securing U.S. ratification (protection of U.S. troops from political prosecutions still chief among them, best I can tell). Given the number of State Department appointees still awaiting confirmation, and the small number of other things the Administration already has on its plate, I’m guessing this debate doesn’t get fully engaged at State until a few more months down the road. Nonetheless, for those who follow this stuff, Bellinger’s piece is worth a read. And if OJ readers have any insights to share about where the ICC sits on the U.S. queue of items on the international law punch list (other than - I’m thinking - behind the Comprehensive nuclear Test Ban Treaty), I’m all ears.

Cross-posted at Balkinization

I really hate to interrupt this great discussion about Kal’s even greater book, and hope to get into it myself before week’s out.  In the meantime, I thought it worth noting that while most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). As the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless.

Recall that President Obama issued a related set of executive orders 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 recommendations 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.

UPDATE: The task force’s interim report and associated appendix are now up at Scotusblog. Link after jump.

Lest anyone think last week’s pair of hearings were Congress’ last word on the question of military commission trials, the House Armed Services Committee has already scheduled it own hearing on reforming the Military Commissions Act. The July 16 witness list features the head lawyer from each of the armed services (Army, Navy, Air Force, Marines). 

Also, in keeping with Congress’ stepped up pace on these issues, there are at least some hopeful signs of push back from the security community itself against Congress’ ill-considered decision a few weeks back to preclude the President from transferring any of the Gitmo detainees to the United States.  A star-studded list of military and intelligence community experts sent a public letter to Congress last week arguing that finding ways to transfer some detainees to the United States is essential to closing Gitmo – which is itself a goal that remains at the core of U.S. national security interests.  Among the signatories: Brig. Gen. Mark Kimmit (Deputy Director of Operations in Iraq during Operation Iraqi Freedom); Phil Zelikow (State Department Counselor in the G.W. Bush Administration); Bob Hutchings (head of the National Intelligence Council also under G.W. Bush); Ali Soufan (former FBI agent who famously testified to the ineffectiveness of torture in interrogation); and many more.  I haven’t seen I haven’t seen a link to the letter anywhere, so I’m pasting the full text as emailed to me after the jump.

[Cross-posted at Balkinization]

While Congress has held two lengthy hearings this week ostensibly on the use of military commissions to try detainees for war crimes, the only item that seems to be getting any significant play is this statement by Pentagon General Counsel Jeh Johnson regarding the administration’s view on its authority to hold detainees even if they are ultimately acquitted at a commission trial. The Senate witness statements are here. The House testimony is here. (Full disclosure, I was a witness at the House hearing.)

The Washington Post story quotes Johnson as saying:

“The question of what happens if there’s an acquittal is an interesting question — we talk about that often within the administration…. If, for some reason, he’s not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it’s our view that we would have the ability to detain that person.”

I think there’s actually less news here than perhaps meets the eye, but I fully understand the reaction that many, including a number in Congress, seem to be having. If you can hold them forever anyway, why even bother with a trial? And what could possibly be such a court’s claim to legitimacy if its rulings have such negligible significance?

So there’s a technical answer in international law, and a practical answer about where we find ourselves today. The technical answer is clear if one imagines for a moment we’re in the midst of a modern World War II – a classic international armed conflict, in which it is entirely possible that war crimes will be committed; in which the United States’ authority to hold, say, prisoners of war, is undisputed; and in which the United States has in all instances scrupulously carried out its obligations under the Geneva Conventions and other relevant law. The U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians. Under current law, we could detain the soldier until the end of the armed conflict without trial (provided we continued to treat him in compliance with Geneva and any other relevant laws). But it’s looking increasingly like the armed conflict may end before next year. And if this guy is really guilty of war crimes, he deserves to be in custody (under a criminal sentence) for far longer than that. So we try prosecuting him. Unfortunately, some key witnesses end up refusing to testify at trial, and the soldier is acquitted. Also unfortunately, the war continues to drag on. Could we go back to holding him as a POW? I’d welcome correction, but I’m not aware of any international law bar to continued POW detention under those circumstances.

Does that technical answer apply in today’s rather different circumstances? The answer turns not on anything new Mr. Johnson just said, but on an argument the Administration has been asserting in Gitmo habeas litigation for months already. The Administration’s litigating position is that there is an ongoing, non-international armed conflict (i.e. a conflict not between two states, but between the United States and the organization Al Qaeda); and that the 2001 AUMF passed by Congress gives it ongoing authority to subject certain individuals (just who is the central subject of litigation) to military detention until the end of the U.S.-v.-A.Q. conflict. There is nothing in the Geneva Conventions that would affirmatively authorize such detention. But neither is there anything in the Geneva Conventions that would squarely prohibit it (provided, as always, it’s subject to adequate procedures, humane treatment, etc.). If the Administration is right about the scope of the AUMF – an interpretation that I believe is overbroad but that has so far been largely winning in the district courts – then presumably the same logic about post-acquittal detention applies as in the Nazi case.

So what’s the problem? I’d say several. First, the Administration’s litigating position on the scope of detention authority under the AUMF is hardly as clear cut as the detention authority the United States asserted over the hypothetical Nazi soldier. Its interpretation of the AUMF is, as I noted, pretty generous for a statute that doesn’t mention the word “detention” and that of itself sets forth no procedures under which such detention is to be carried out. Indeed, it’s still not clear to me the Administration has taken that position with respect to the scope of the AUMF anywhere beyond the so-called legacy cases (those detainee cases pending when Obama took office). Second, the military commission process to date has been anything but a paragon of legality or legitimacy. (Former commission prosecutor Lt. Col. Darrel Vandeveld’s testimony in the House yesterday on where the commissions have been was particularly powerful on this point.) It is possible in theory to conduct lawful trials for war crimes. But there is a great deal of appropriate skepticism (not least among House Democrats) about whether the third try at such a trial system will, particularly at this late date, fix the gross deficits of the past.

Here, the past eight years worth of behavior has left both the legitimacy of the detention authority, and the legitimacy of the trial authority, in substantial question. It is hard to imagine that combining the two will bolster the credibility of either. On the contrary, it seems very likely to make the strategic costs to U.S. counterterrorism policy – costs in weakened relations with our allies, and with the moderate Muslim world – substantially higher.

Next week looks to be a busy one on Capitol Hill. As the Obama Administration Task Force on Detention nears its initial July 21 reporting deadline, both the House Judiciary and Senate Armed Services Committees will be holding hearings on a closely related topic: legal issues surrounding the use of military commissions to try offenses against the law of war. The SASC witness list is star-studded, to include the current Defense Department General Counsel, TJAG of the Navy, and head of the Justice Department’s National Security Division. The House hearing, directed by the Chairman but held under the auspices of the subcommittee on the Constitution, hasn’t yet posted its witness list. The Senate goes Tuesday; the House goes Wednesday. If Michael Jackson coverage permits, should be an interesting few sessions.

Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement.  Then on to rumors of a contemplated executive order on detention issues.