Some of you will recall the series of posts a few weeks back about the new authorization for use of military force (AUMF) legislation that the House of Representatives debated and passed at the end of May. Among other things, the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued here, here and here that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.

This week, the Senate Armed Services Committee takes up the debate, and a colleague has passed along a briefing paper that the Administration is circulating on the Hill detailing its position. I’m still figuring out how to post a PDF, but in brief, the 7-pager explains in even clearer terms than earlier statements in response to the House bill why the Administration opposes the measure. On the idea of a new AUMF, the paper raises both sound legal and policy objections. The relevant section follows.

“The President has the authorities he needs to capture and detain supporters and members of al-Qa’ida, the Taliban, and associated or affiliated forces. Legislative efforts to update these authorities, however well intentioned they may be, would change horses midstream with no discernible benefits, and would risk both inviting waves of new litigation and sending mixed messages. Over the course of nearly a decade of policy development and litigation, the Executive Branch has used the 2001 AUMF to provide the legal basis for using necessary and appropriate force, including detention, against al-Qa’ida, the Taliban, and associated forces. The Administration has zealously and effectively pursued the enemy under this existing authority, and has successfully defended its authority to detain in the federal courts. Now is not the right time to reconfigure a legal framework which, generally speaking, has been approved by the judiciary.

The proposed language does not simply confirm the President’s existing authorities based on the 2001 AUMF. Rather, it seeks to update those authorities, and could be interpreted by the courts as an effort to override current relevant domestic and international law. For example, language that extends detention authority to all persons who had been members or supporters of an enemy force at some point in the potentially distant past before the commencement of armed conflict, or in cases where the individual has demonstrably left the group in question prior to capture, is out of line with judicial decisions as well as the laws of war. Moreover, bills that introduce new terms like ‘affiliates,’ without definition, raise unnecessary ambiguities and expose the United States to the charge that its critical national security designations are not meaningfully governed by the rule of law. Thus, the proposed language could unsettle rather than clarify the law.

Revising the AUMF also threatens to place foreign policy and national security goals at risk. By ‘updating’ the 2001 AUMF, the legislation could encourage the view – held rightly or wrongly – that the United States is seeking to expand the scope of the armed conflict, make that conflict permanent, and/or claim authorities unknown to international law. Moreover, many international observers will wonder why the United States has chosen this time to reaffirm a state of armed conflict with the Taliban, given efforts to promote transition and reconciliation in Afghanistan.”

For those who follow these topics, two items of note. First, an AP story today reports that the United States is building a secret CIA air base in the Persian Gulf region to support U.S. targeting operations in Yemen. The story is sourced to anonymous government officials, and reports that “U.S. forces have stepped up their targeting as well, because of the besieged Yemeni government’s new willingness to allow U.S. forces to use all tools available — from armed drones to war planes — against al-Qaida as a way to stay in power, the U.S. officials said.” Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups (more on which here, here, and here), this is significant news. I’m surprised not to have seen it picked up more yet.

Second, and certainly timely, the Cato Institute has a set of essays up by John Dehn and others looking at the legality of targeted killing. The lead essay by Ryan Alford focuses on Anglo-American constitutional principles against the killing of a citizen or subject without judicial authorization. Check them out here.

In a post last week, I recommended Human Rights First’s new report on U.S. detention and trial operations in Afghanistan for its insights into the evolving situation there.  I also raised a question about the legal framework the report used to analyze the sufficiency of detention procedures: “HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.” Responses to that question produced an interesting exchange on and off-line between Gabor Rona and Marty Lederman. With the relevant permission for the off-line part, I excerpt their exchange here.

Cross-posted at Balkinization

Bobby Chesney writes back with a thoughtful post responding to my question about whether the United States has forward-going detention needs in its counterterrorism operations that are currently unmet by the 2001 statute known as the AUMF. The question arises in light of Congress’ current debate over whether to pass (as the House already has) new legislation essentially extending and broadening existing use of force authority it passed in 2001.

Before I engage Bobby’s suggestions, a quick note principally to our readers not as steeped in domestic U.S. law who have written to ask what this debate is all about. So in grossly abbreviated form… As a matter of domestic U.S. law, the executive must have some affirmative font of authority for carrying out war-making and/or counterterrorism operations, either under the Constitution or under a statute passed by Congress. The Gitmo detainees and others who challenged the legality of their detention starting in 2002 argued, among other things, that the executive lacked such authority. In 2004, the U.S. Supreme Court held in a splintered plurality opinion that (a) the AUMF (which I quote in an earlier post) did give the executive the authority to detain, at a minimum, “an individual who…was ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there”; and that (b) the Court’s interpretation of the scope of the AUMF was informed by “longstanding law of war principles.” Litigation in lower federal courts since then has reached some stasis regarding who else beyond the individuals described in Hamdi could be detained, and (although less clearly) how IHL informs this conclusion. Broadly speaking, the courts have read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

Ok, that said, Bobby suggests there are two categories of individual the United States may need/want to detain in the coming years who he thinks may not be covered by the existing AUMF: (1) Al Qaeda-member detainees like KSM who we’re currently holding at Gitmo and who we may want to continue to hold after the cessation of active hostilities in Afghanistan (when IHL would presumably require Taliban members to be repatriated); and (2) a bomb-making expert (or the like) who’s a member of Al Qaeda in the Arabian Peninsula (AQAP), a group that Bobby (and John Dehn in a helpful comment to an earlier post) I think probably rightly understand as “ideologically but only arguably operationally aligned with al Qaeda” (John’s formulation). (FWIW, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.)

These are useful examples, but I’d say still don’t really make the case for new and improved use-of-force authorization. The first example is the easier one. KSM is the poster child for the terrorist who could and should (long ago) have been prosecuted in federal criminal court. That he hasn’t been is a moral and political (and legal) embarrassment brought about in substantial part because various members of Congress keep proposing laws like the one that passed along with the House bill yesterday, barring the President from prosecuting any foreign terrorist suspect, wherever he may be detained, in any criminal court. As I think I can safely say based on past discussions (not to mention recent posts), neither Bobby Chesney, nor Ben Wittes, nor Jack Goldsmith, nor Marty Lederman, nor I (all oft-times on opposing sides of these issues) think such a ban is a good idea. I also think it safe to say KSM will, at a minimum, face prosecution before military commission in any case. As for the non-KSM Al Qaeda member at Gitmo, particularly given the habeas cases already decided, I guess I’d say it’s pretty clear they’re considered ‘grandfathered in,’ as it were, under the existing AUMF. Hope of course springs eternal we might eventually just prosecute him, too.

What, then, of AQAP, which seems to be something of a post-9/11, quasi-independent franchise of bin Laden’s Al Qaeda (looking to profit, as it were, from the notoriety of the Al Qaeda brand name)? Let’s imagine for a minute that it is in fact this group and its ilk that Congress has in mind in thinking the President needs more detention authority than he has. If AQAP really didn’t crystallize til 2009 or thereabouts, and if its relationship to Al Qaeda per se is less than clear, maybe (maybe) the existing AUMF doesn’t extend. So if that’s who we’re after why tie such groups to the language of the 2001 AUMF at all? Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. I’m going to use exaggerated language here, but it’s in service of trying to clarify the point: “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

Here, Suzanne Spaulding, former general counsel for the Senate Select Committee on Intelligence, former executive director of the National Commission on Terrorism, makes the case better than I.

Osama Bin Laden sold the notion of a “Global Jihad” as a way of bringing disparate terrorist groups, who had been locally or regionally focused, into his fight with the West. He convinced them that they couldn’t change their local regimes, the “near enemy,” because those regimes were backed by the “far enemy,” the United States and other Western nations. The only way they could succeed with their local objectives, he argued, was to join his global fight against the far enemy…. [T]he events of 9/11 provoked the United States into declaring its own Global War, which Bin Laden used to support his claim that Muslims were called to join in the Global Jihad. No matter how many times US political leaders asserted that they were not engaged in a War on Islam, Bin Laden and his followers pointed to America’s Global War to inspire new recruits. The reason the Arab Spring was such a devastating blow to Bin Laden’s strategy was that the near enemy was overthrown by the efforts of the local population, not as a result of the Global Jihad.… With Bin Laden’s death, the most effective advocate for the globalization of terrorism is gone. Tensions have long existed within al Qaeda between those who believed in the imperative of going after the far enemy and those who thought poking a stick at the West was folly and the fight should be taken more directly to the near enemy. Those fissures should now grow, further complicating the struggle for succession….If we can undermine the appeal of a global movement, that would have significant long-term benefits.

If one buys this case, even a bit, then it strikes me important reason for hesitating to start the post-bin Laden era by declaring war all over again.

Cross-posted at Balkinization

The U.S. House of Representatives today passed its version of the 2012 National Defense Authorization Act, including provisions that prevent any of the Gitmo detainees (or indeed any terrorism suspects) from being subject to criminal trial, and also “affirms that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces,” whomever those “forces” might be. I take some comfort in the fact that there’s still the Senate and the President’s threatened veto standing between the House bill and the law of the land.

In the meantime, responding to my post below arguing that a new authorization for use of force against Al Qaeda et al. is a bad idea, Bobby Chesney writes the following:

“[I]t seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda. From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing. I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death.”

I had expressed the view that the 2001 AUMF had some sort of implicit time limit attached, a limit one could understand as either a function of the passage of time or, as Bobby sensibly notes elsewhere, more specifically as tied to the facts on the ground. (At the moment, the passage of time has seemed to be associated with the weakening of Al Qaeda per se, but it is true that circumstances could change.) To be clear, I had O’Connor’s warning about AUMF interpretation in Hamdi in mind: “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

But Bobby’s more important point is the one I quote above – namely, that how one feels about the new legislation depends on whether one thinks we need forward-going authority to, say, detain members of Al Qaeda we might catch, say, tomorrow. In this respect, I think Bobby’s put his finger on exactly the key issue, and it’s a biggie. It’s about whether we want to continue to give the President very broad detention authority going forward. Bobby thinks he needs it. I’m not so sure.

Here’s my thinking. Let’s say we can assume, based on the outcome of habeas litigation to date, that the detainees at Gitmo and the detainees now held (or picked up in the next year or two, as the U.S. transfers detention operations to Afghan control) in Afghanistan will generally be considered by the courts and the executive to be covered by the existing AUMF (to the extent the government can establish the relevant facts). Beyond these cases, how do we measure or assess the need for forward-going detention authority to combat Al Qaeda, the Taliban and “associated groups”?
Historically, one way of making this assessment has been to defer to executive judgment. This ‘deference’ was on the grounds, the argument has gone, that the executive has the best access to information and insight into U.S. security needs. Here of course, the executive actually opposes the bill. And the initiative to expand or at least prolong detention authorization comes not from the executive branch but from folks on the Hill who, as best I can tell, haven’t spent much time formally (or informally?) seeking executive branch or other putatively expert opinion on the matter.

Another way of making the case for new and improved detention authority is to demonstrate independently that there is some unmet need out there – for example, that executive agencies have been hamstrung in their counterterrorism activities by a perceived lack of existing detention power. Given the degree of classification involved in U.S. counterterrorism operations in such matters, that kind of independent case has always been difficult to make. Indeed, to the extent I’ve seen such arguments, they seem heavily dependent on, at best, individual and unverifiable anecdotal accounts. Or on slippery logical claims that find causal connections where causation is entirely unclear. (For example, the argument that the United States is engaging in more targeted killing operations in the Af-Pak theater because they’re not sure how much detention authority they have. It seems equally plausible to me that the United States is engaging in more targeted killing operations because, say, after a decade of field intelligence collection we have a better sense of where lawful targets may be found than we did when we opened Gitmo in 2002.)

In any case, the new bill puts a premium on making a contemporary and persuasive case in favor of detention authority that lasts longer (and, under the current version, sweeps more broadly) than the authority we’ve found sufficient to deal with the detention operations we already have under way.

Cross-posted at Balkinization

Congress is debating a defense authorization bill this week that would not only prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, but also effectively double down on the Authorization for Use of Military Force (AUMF) legislation Congress passed just after the attacks of 9/11. Here’s the bill. Recall that the 2001 AUMF has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. While congressional efforts to hamstring the criminal prosecution of terrorists are no longer new – though still just as misguided – the re-authorization for the use of force language is new, and efforts to discern what it all means have filled my inbox to overflowing. For my money, I’d say the proposed language makes matters worse for a host of reasons (more on which in a sec). So I was delighted to see the Obama Administration issue a statement yesterday threatening to VETO the entire bill if the set of detainee-related provisions are included. Here’s their take. Although the Administration has complained about the Gitmo prosecution-and-transfer restrictions in the past, this is the first time it has issued a veto threat to underscore the seriousness of its objections.

Bobby Chesney raises the question whether the veto threat should be read to extend to the AUMF redux provisions. I sure read it that way, and we should count on the Administration to say publicly otherwise if there’s any serious question of its intent. The fact that it’s threatening a veto here and hasn’t raised such a threat to earlier, fundamentally identical, transfer restriction provisions might favor the reading that it sees something new in this bill it doesn’t like even more than it didn’t like earlier bills. In any case, I hope the threat extends. Without parsing in detail, here are three of the reasons why I think the new language is a mistake. (I’m also pasting copies of the relevant bills – the original AUMF and the newly proposed language – below so you can judge for yourself. )

(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?

(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.

(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.

For the record, here’s the text of the current AUMF, followed by the text of the proposed language below.

AUMF OF 2001
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Nothing like the end of the semester as a cure for one’s reading pile. In addition to Marty Lederman’s post on the bin Laden targeting below (great to have him back in the blogosphere!), I’d recommend the following reports you might have missed.

First, back in April, around the time the Times published its account based on Wikileaks documents of the detainees who’ve passed through Guantanamo Bay, Princeton undergraduate and honors student Sam Dorison handed in his senior thesis. Why mention a student thesis here? It’s the best (and in key respects only) study that uses statistical methods to analyze who has been released from Gitmo since 2002 and why. He correlates a range of individual characteristics with length of detention and concludes, among other things, that a detainee’s citizenship is the most significant factor in determining his length of detention at Guantánamo Bay. For those who’ve been following this, that conclusion may well seem consistent with your general sense. But note the significance: (1) release from Gitmo is at best only very slightly correlated with the level of threat the government thought the detainee presents, and (2) citizenship matters not because we’ve necessarily released detainees to our allies but not our enemies, or to human rights-respecting countries but not human rights violators, but because it reflects the detainee’s home country’s ability to monitor him after release; a lower capacity to monitor translates to longer detention duration. Sam’s data are drawn principally from 516 CSRT reports and also take account (with a critical eye) of all the available studies already out there (some of which are of course better than others). For those keeping track at home, well worth a look.

Second is a new report by Human Rights First on U.S. detention operations in Afghanistan – the most thorough and up-to-date assessment on the topic I’ve seen by a long shot. Reflecting on the fact that the number of detainees in Afghanistan has nearly tripled since President Obama took office (now up to 1700, no doubt a reflection of the increased pace of U.S. operations in country), HRF writes up its observations based on the remarkable access they were granted by the U.S. military to observe a handful of detainee review board hearings, as well as an Afghan trial supported by the United States, late 2010-early 2011. HRF also interviewed former detainees, Afghan defense lawyers, prison officials, and U.S. military and State Department personnel. The upshot: while the Obama administration has made some noteworthy progress, there’s more work to be done. Bagram prisoners now have the right to appear before a board of military officers to dispute their detention as “enemy belligerents” fighting U.S. forces, they lack the legal representation the Gitmo detainees have enjoyed, and still lack the right to see the evidence against them. And while the Afghans have begun conducting some actual trials under U.S. auspices, those proceedings have a long way to go before they come close to meeting international standards of fair trial. Make of all this what you will – I actually take some comfort from the reality that HRF had the kind of access they did, and from at least the general trajectory of detention policy there – but I’m very glad HRF continues to hold the USG’s feet to the fire in Afghanistan. For now, one last suggestion that readers may be interested to note HRF’s application of legal framework here, which is to me a not entirely clear blend of IHL and human rights law. HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.

Finally (for now, I’m still catching up), former State Department Legal Adviser John Bellinger and his former State Department colleague (and soon-to-be Vanderbilt Law professor) Vijay Padmanabhan have a new piece out in AJIL lamenting the ongoing gaps they describe in IHL as applied to non-international armed conflicts. I confess I’ve only skimmed it so far, but particularly in light of my questions about the law HRF is applying in evaluating U.S. operations in Afghanistan, I’m going to give this a careful look. For the time being, let me just quote from the article’s ambitious statement of mission.

[O]ur hope is that by identifying areas of agreement among states detaining nonstate fighters, and by suggesting additional considerations that should receive further thought, the international community will be better positioned to develop new law for guiding and constraining state action in future conflicts. While we recognize that a new international instrument, even if advisable, is unlikely to be achieved in the near future, an agreement on common principles by like-minded states would further the process of legal development—which is urgently needed in this area.

A former research assistant of mine writes with news of a conference at Columbia Law School May 23-25 that may be of interest to our readers. I copied the announcement below. More information available here.

The Center for Climate Change Law and the Republic of the Marshall Islands are co-sponsoring a conference, “Threatened Island Nations: Legal Implications of a Changing Climate.” The meeting will discuss such issues as continuing statehood and maintenance of maritime zones for states facing inundation from sea level rise; resettlement rights and practicalities of population displacement; liability for climatic harm in judicial forums; the utility of responsibility regimes under current law; and the role for a new convention on climate displacement.

Cross-posted at Balkinization

In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree.

“Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or had the program not existed at all and had the interrogators in question been military folks. One can never establish a but-for relationship between coercive practices and any valuable intelligence that we learned following its use. But I do not think the effort to understand the value added of the CIA program is useless. In fact, I think it’s critical. If one believes that the program contributed nothing–or little–of value that could not have been obtained in a manner that did not trouble our collective conscience, one will and should feel very differently about it than one will and should if one believes it provided critical intelligence that saved American lives and led to the capture and killing of key Al Qaeda figures. While it may be impossible to get certainty on the answers to these questions, it should not be impossible to get some more solid understanding of the matter than we currently have as a society. A lot of people are quick to opine on this matter in one direction or another, but it has received virtually no impartial study.”

Various things to say. First, I quite agree that impartial study of intelligence methods and their effects is of great value. That (among other reasons) is why I have long supported the establishment of an independent commission that would look back over intelligence practices of the past decade and evaluate not only questions of history, but also questions of strategic impact, small and large. It is also why I thought it worth looking closely at the findings those impartial studies that do exist – like the 2006 report on Educing Information by the Intelligence Science Board – which I’ve often cited for its conclusion, among others, that “knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collectors” with current populations of interest. In other words, 4 years in to our dramatic program of coercive intelligence collection, no one knew in any real way how to secure the revelation of accurate information from an individual. My point in this week’s post was not that such investigations, when rigorously and ethically done, lack value. Just the opposite, it was to note that post hoc assertions based on incomplete information about a particular anecdotal case are no substitute for rational study. Put differently, for every “maybe some guy in Gitmo said something useful” story, there’s a “some guy in Gitmo said something false that lead us to war in Iraq” story. Dueling anecdotes do nothing to advance – and plenty to mislead – the inquiry about efficacy.

Second, and more broadly, let’s imagine for a minute that the closest to “truth” about efficacy we will ever be able to get is that sometimes people say useful things under torture and sometimes they don’t. In other words, let’s imagine that study will not be able to conclusively foreclose the possibility that on some occasion, someone will say something true if you torture them. (With more study, maybe one could discern what kinds of torture are more likely to produce true answers than false ones, even true answers not otherwise obtainable, but I’d be fascinated to hear the scenario for doing this in any ethical way.) The far harder question still remains: What policy conclusion follows from this result? How does one weigh this information in a cost-benefit analysis that includes tactical gain vs. strategic loss, effects on our own forces, variations among individual responses, designs of training and education, alternative options (including a finding that sometimes, someone will say something true if you give them a Big Mac), or all of the important arguments from philosophy, morality, law, medicine and religion that say efficacy is entirely beside the point, and we can decide as humans that there are some kinds of things we simply won’t do? Science can be enormously valuable. But I think it’s a mistake to imagine in thsi case that it will get us out of – or even much clarify – the otherwise far deeper question. In all events, for those who have not yet settled this matter in their own minds, this week strikes me as a particularly inopportune time to try.

Cross-posted at Balkinization

For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama to rethink his opposition to torture. Emptywheel, naturally, says it’s clear waterboarding had nothing to do with it. FWIW, Rumsfeld appears far closer to Emptywheel’s view than King’s.

Why is this a fruitless (not to mention so, so old) conversation? Any number of reasons. For one, the odds are negligible that we will ever truly know who produced the critical piece of information when and for what reason. If perchance we do learn the actual “facts” about what happened – facts as distinct from competing anecdotal accounts selectively leaked by “official sources” with agendas of their own – they will prove nothing in any meaningful way. If a detainee effectively volunteered key information, advocates of waterboarding, prolonged isolation, etc. will insist torture could have produced it sooner. I’ll look forward to their controlled study. If a detainee gave up the information under torture, critics will insist that it is impossible to know whether he also would have conveyed the same information under other conditions. Just right.

Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody. The debate is about torture and cruelty. And all the arguments that existed about the legality, morality, and efficacy of torture that we had when we had the debate in 2002, and 2004, and 2006, and 2008 and all the years in between – remain the same today as they were yesterday. So let’s note that the U.S. law prohibiting cruel techniques has been strengthened since 9/11. Let’s recall that there was nothing at all in the President’s speech last night to suggest that this no-doubt defining experience of his presidency has led him to reconsider his standing executive order reinforcing existing prohibitions. And let’s not nudge the blogosphere to see that yesterday’s events “reignite” that old, rightly concluded, debate.

Having just read through the new order quickly, a few thoughts. First, as had been long rumored, the order essentially sets up a periodic review system for the Guantanamo detainees. The review system is discretionary in nature, but appears designed to supplement the already existing and fairly robust review available to Gitmo detainees through the federal courts since 2008 (thanks to the Supreme Court). In this respect, the order should be seen as a positive development. Especially given that not all of those seeking habeas review win their cases, I certainly don’t see how it can hurt to have an additional layer of periodic review to ensure that the circumstances that made detention appropriate in the first place (the existence of a particular armed conflict, for example) continue to hold.

Indeed, such a system of review seems directly contemplated by the Geneva Conventions (at least as they apply to more traditional situations of occupation and international armed conflict) when it comes those a state thinks necessary to detain for “imperative reasons of security,” as the Fourth Convention puts it. (This is not to suggest I think that convention or its Art. 78 directly applies here in any way; I note it only to show that systems of periodic review are generally favored by the Conventions in circumstances of armed conflict. Again, on very quick scan, the order reads to me as though it is trying to extend this IHL-by-analogy idea in explaining, for what it says are discretionary purposes (not to change or impact how the district courts have already resolved this question) that in the President’s view “[c]ontinued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.” More on the utility of this standard for these limited purposes below.) For an administration interested in attending at all to the international law of armed conflict, and in the face of a Congress that has proven itself repeatedly loopy when it comes to all things Gitmo (most recently with the deeply ill-conceived use-of-funds ban on detainee transfers even for criminal prosecution), this seems like a fine step.

As for the quality/nature of the review process itself, much will have to wait for guidelines the order requires the Secretary of Defense to issue, but the parameters set forth in the order seem sensible as far as they go (and again, on very quick survey). There’s notice and an opportunity to be heard, and, I take it, to be assisted by both a government-appointed representative and an outside/private counsel. And the order appears to establish a separate process to keep tabs on what progress the government is making on transferring detainees who are found (by this process or otherwise) eligible for transfer. One red flag – as I read it, after the initial review, although files are reviewed annually, the detainee doesn’t get this kind of full review again for another 3 years. Why wait so long? The answer no doubt relates to a fuller understanding than what is reflected in this document of why/under what circumstances the President thinks these detainees will ever be entitled to release. More on that below, too, but for now I’d say the answer (to why/what circumstances) remains unclear.

Second, and probably more important, the new executive order is limited to the handling of the ongoing detentions at Guantanamo. (Per the text, “The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order…. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law.”) In this respect, I read it to reject efforts by some to make more permanent the detention regime Guantanamo currently models. This is a good thing. And it seems consistent with the Administration’s moves on detention policy elsewhere. Worldwide, the Obama Administration appears to have been working actively to get out of the “wartime” detention business, and wisely so. Having held tens of thousands of detainees since the attacks of 2001, the U.S. is now out of the detention business in Iraq, well on its way to getting out of the detention business in Afghanistan, and (according to the administration) entirely out of the secret-CIA-facility-detention business for good. The uniquely backwards Guantanamo regime – and a substantial reason why there is ongoing detention at Guantanamo at all – emerged patchwork and as a lesser-of-multiple-other-evils response to the foolishness of the Bush Administration on detention policy, a policy that needlessly ignored international law (among other legal strictures) over a period of years.

These days, the working theory behind Gitmo – now blessed in somewhat different form by two administrations, endorsed by the D.C. federal appeals court, tolerated by Congress, and by its terms untouched by this order – is that the statutory Authorization for Use of Military Force passed in 2001 includes authority for the President to detain certain individuals (a category defined with modest and fuzzy reference to international law) for the duration of an armed conflict (within the meaning of international law) between the United States and Al Qaeda. Not an implausible basis of authority in principle. But in reality, the AUMF is vague, and international law informs the statutory meaning in incomplete ways at best. To the extent that international law does offer guidance – for example, on the question of whether the chronic, global threat of hostilities (and occasional actual hostilities) between a terrorist organization and much of the rest of the world counts should really count as an “armed conflict” within the contemplation of the Geneva Conventions – I’ve argued that its guidance should lead us to avoid such broad definitions. Armed conflict in international law terms was meant to describe an exceptional state of affairs; a defined, and definable, moment in time during which ordinary law does not apply. In an age in which the threat and reality of transnational terrorism has been and seems foreseeably likely to remain a condition of human existence indefinitely, the U.S. v. Al Qaeda armed conflict on which the Gitmo regime depends, while arguably better than the “war on terrorism” the last administration asserted, is indistinguishable from the world’s ordinary state of being. It is the exception that swallows the rule. For these reasons, among others, I’m glad to see the executive order read in ways that seem to limit the necessary damage that ameliorating the situation at Guantanamo does.

All that said, the order seems to leave open some critical questions. The prospect of periodic review of detention implies that there are circumstances that do not exist now but that might arise in the future in which a prisoner currently deemed detainable becomes eligible for release. What are these circumstances and how, exactly, may a detainee go about demonstrating they exist? In some respects, the order does specify what particular eventualities it has in mind. The transfer review process, for instance, is designed to monitor the cases of those who are currently “conditionally detained,” i.e. detained pending a finding improved security circumstances Yemen (unclear assessed according to what metric and by whom); or detained pending only the identification of a suitable rehabilitation program or other third-country transfer option. For those individuals, the circumstances that would necessitate their release seem at least marginally clear. But beyond the detainees who find themselves in one of those categories, what does it mean that continued detention is available where “necessary to protect against a significant threat to the security of the United States?” Must there be a finding of an end to the armed conflict US v. Al Qaeda? May more individualized findings also be dispositive? May a detainee once deemed a security threat show by his words, conduct, or psychiatric profile that he no longer poses such a threat? I pose the questions not only because any detailed periodic review regime must be prepared with answers to them, but also because in practice I’ve often found that friends and colleagues who favor “preventive” detention with periodic review in principle become flummoxed and mute when asked to describe how/when such periodic review leads to release. Because it seems difficult to imagine that an individual President will ever enjoy a political environment in which releasing Gitmo detainees is easy or uncontroversial, it seems particularly important for any periodic review system that exists to be thoughtful, specific and to the extent possible binding about the process by which it might ever lead to release. Without such identified circumstances, it becomes not so much a useful additional layer of review, but a process that adds more to the appearance than the reality of legal legitimacy.

This order goes farther in answering such questions than any U.S. law, legal brief, or set of guidelines I’ve yet seen in the public realm – and that is a strength. But I don’t believe it can be understood as definitively answering the remaining questions about what we are doing at Guantanamo Bay.

The President’s much-anticipated executive order on Guantanamo was released today. I hope to read and comment on it shortly (not to mention figure out how to post a PDF). In the meantime, the press statement is here. It reads in its entirety as follows:

Statement by President Barack Obama:

“From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.”