At the risk of contributing further to Ken’s angst about the coming post-Guantanamo future, I thought OJ readers might be interested in this latest entry in the public what-to-do-next discussion. Fordham Law School’s Leitner Center for International Law and Justice has begun posting a series of white papers prepared by various groups of scholars with recommendations about international human rights issues under the new administration. Of particular interest might be the Scholars’ Statement of Principles for the New President on U.S. Detention Policy, which addresses Guantanamo (among other things). Prepared under the auspices of the progressive think tank Center for American Progress, the detention white paper is signed by, inter alia, Derek Jinks, Sarah Cleveland, Gene Fidell, and Brig. Gen. David R. Irvine, U.S. Army (Ret.) (Irvine is a former interrogation instructor at the Sixth U.S. Army Intelligence School). Full disclosure – I signed onto it, too. For what it’s worth, at least “some” in the scholars group acknowledged the possibility of ongoing detention – consistent with U.S. and international law – for some of those currently held at Gitmo.
Some of the undersigned note that the new Administration, in its own review, may identify exceptional cases in which a detainee has not demonstrably committed a crime (for example, because there is a lack of admissible evidence to try the detainee for a crime), but the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States. Continued detention of such detainees must be in accordance with the principles and policy recommendations outlined in this Statement … [and applicable U.S. and international law].
UPDATE: Lest my nudge back to Ken risk distorting the overall gist of the document, I should hasten to clarify that the signatory scholars were united in opposing “any effort to extend the status quo by establishing either (1) a comprehensive system of long-term ‘preventive’ detention without trial for suspected terrorists, or (2) a specialized national security court to make ‘preventive’ detention determinations and ultimately to try terrorism suspects.”
Treat this as the latest round in the Guantanamo discussion … David Cole writes in the Boston Review on detention. Joanne Mariner of Human Rights Watch, Bobby Chesney and Eric Posner all respond online there. But if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release? And certainly no sympathetic words for the views of the several co-panelists who said, well, you know, some of these people you really might not want to release no matter what, and by the way there are doctrines under the laws of war that allow detention … Eric says he hasn’t been through David’s stuff closely enough to be able to say whether this is a change of mind. Well, I’m through a re-read of three of David Cole’s last four books, the ones that just happen to be sitting on my shelves. I suppose it’s possible that after wading my way backwards through all this stuff, I’ll decide differently and conclude that all along these books held a theory of administrative detention in wartime applicable to various Bad Non-Innocent Shepherds at Guantanamo, etc., etc. and I was just not bright enough to see it. Maybe, and this is not definitive, it’s just a blog post, that’s all (and if I conclude I’m wrong about this, I’ll come back and post a note here to that effect, to avoid the ‘memory hole of the public intellectuals’). But at this point it is hard for me to see how this isn’t walking back the dog now that the Obama folks are about to take the reins and with no other reason or justification. And it is equally hard for me to see that this isn’t what a law partner once long ago told me we were going to do after having given some spectacularly bad advice: “Look ‘em in the eye and say, consistent with our earlier advice to x, not x.”
Jonathan Adler, over at Volokh, cites to Glenn Greenwald on the possibility that key Congressional Democrats, starting with Senator Feinstein, may not be moving to require that the CIA conform to DOD standards on interrogation. Here is the post.
Are key Senate Democrats moderating their unequivocal opposition to the use of torture or less-severe coercive interrogation techniques? Glenn Greenwald thinks so. In particular, he notes that Senators Dianne Feinstein (who is the incoming Senate Intelligence Chair) and Ron Wyden had previously insisted that the CIA comply with the Army Field Manual when conducting interrogations, and even co-sponsored legislation to write this limitation into law. Now, however, both are indicating a more flexible stance.
(Professor Martin Scheinin, whose mission and report on the US and counterterrorism and human rights I discussed below, was kind enough to post a substantive response to my earlier post, “Try or Release.” Particularly since I was quite critical of that report, let me move Professor’s Scheinin’s response up to its own post. Apologies for not noticing it earlier – it was languishing in our comment moderation in-box until Peggy pointed it out to me. And my thanks to Professor Scheinin for his substantive and gracious reply. Ken)
Martin Scheinin on Administrative Detention
After a public debate with Kenneth Anderson in Washington DC more than a year ago it comes a bit as a surprise how Anderson presents my views as a bulldozer approach. Let me start by expressing in a nutshell my understanding of what human rights law says about administrative detention …
Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think a new administrative detention regime is a bad idea as well.) Objecting to such a new regime on policy grounds is, of course, different from asserting that it is categorically prohibited as a matter of international human rights law. Now I hardly wish to defend, explain or criticize Professor Scheinin’s particular remarks; among other things, I wasn’t at the 2007 discussion you mention and haven’t seen a transcript. The relevant paragraph of the report you reprint on this question is almost entirely limited to the Guantanamo detainees. And where it is not (as I read it, only in the last sentence of the second paragraph), it seems to be taking a position on the applicability of existing international humanitarian law (the law of armed conflict). On that question – whether there is an ongoing armed conflict in Afghanistan – I’ll have to respectfully disagree. I believe there is. As you point out, not even the ICRC is likely to dissent here. As for the no doubt considered views of our friends at HRW, HRF, ACLU, and beyond, we’ll have to trust them as always to speak for themselves.
Thanks to Deborah for that thoughtful response re the administrative detention debate ongoing now … but I don’t think I agree, at least as to the idea that administrative detention has been considered an acceptable policy response among the human rights advocates and civil libertarians. I should look and see whether ASIL posted video or a transcript of the Tillar House discussion in late 2007 between Professor Scheinin and me, but clearly I needed Deborah there to defend me. It was a full house, with lots of aggressive and hostile journalists and lawyers and human rights and civil libertarians, and they were not there to entertain the possibility of administrative detention.
(Update: I’ll stick in here, not quite on topic, the link to Jack Goldsmith’s op ed today in the Washington Post, on the question of whether the Obama administration should be taking up new investigations, criminal or otherwise, related to CIA interrogations, detentions, and so forth. Jack Goldsmith, “No New Torture Probes,” Washington Post, Wednesday, November 26, 2008, A13.)
With apologies for arriving late to the helpful Hakimi-Waxman-Anderson exchange, I thought it worth noting the apparent consensus on at least one position I, too, share: there is no categorical international law prohibition on “administrative” (or otherwise non-criminal) detention. Indeed, I’m not sure I could name a human rights or humanitarian law scholar I know who thinks otherwise (though it’s entirely possible I just don’t get around enough).
I sharply criticized New York Times reporter William Glaberson – the Times’s chief Guantanamo reporter – last week for, among other things, failing to take note of Benjamin Wittes and the centrality of his book, Law and the Long War. I am happy to report that Glaberson has a new article out in today’s NYT, this time interviewing a wide range of people about the argument over preventive detention and a new Obama administration. It has interesting quotes from Wittes, Jack Goldsmith, Elisa Massimino, and several others. It’s a good piece, and makes plain the position of those (of us) who said flatly that a new administration, Democratic or Republican, would quickly discover that there is a certain number of people who will not be treated under what had been until the Obama election (or, in the case of the New York Times, the day before the election) the inviolable and pure and worthy standard of “charge them in Federal court or let them go.”
Update: besides the exchange under the Guantanamo tag, see this post referencing and quoting Eric Posner on this issue.
Turns out rumors of a new Obama Administration-developed security court may have been greatly exaggerated – or at least premature. The blogosphere was briefly abuzz yesterday after an AP wire story in the morning reported that some of the Guantanamo detainees “might have to go before a new court designed especially to handle sensitive national security cases, according to [unnamed] advisers and Democrats involved” in talks with the Obama transition. In particular, “[a]ccording to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate.”
By last evening, CNN was quoting an actually named transition adviser who had a rather different take. According to senior adviser Denis McDonough, no decisions had been made about what to do with the remaining Guantanamo inmates when the base is closed, and moreover “there is no process in place to make that decision until [President-Elect Obama’s] national security and legal teams are assembled.”
McDonough’s position is not only obviously right, it’s far more likely true. The resolution of the cases remaining at Guantanamo is as fraught an endeavor as any, sensibly resolved only with the input of an interagency-type team including at a minimum the Departments of Defense and Justice, CIA and State. It also seems like the kind of judgment that one wouldn’t want to make without having actually reviewed the full factual record the government has assembled on the individuals who remain – a record that still has been only partly made public. It’d be one heck of a transition team that had managed to make time in the first week to review all 250+ cases from Gitmo on the (classified and unclassified) facts.
A whole lot of folks are understandably – and rightly – keen to see Gitmo resolved ASAP. But as someone (could be the president-elect) once said with respect to Iraq – we need to be as careful getting out as we were careless getting in. There are a few things, including a clear statement of purpose, that can happen right away. For the rest, we’ll have to wait at a minimum til after January 20.
If there’s one thing the new administration isn’t going to be lacking it is plans for how to correct the rule-of-law failures that have dogged U.S. counterterrorism policy in the post-9/11 world. As someone put it to me last week (hat tip to whomever it was!), you can’t swing a dead cat around Washington these days without running into a plan for how to close Gitmo.
While the Bush Administration may have reconciled itself to leaving office with the detention center at Guantanamo Bay still up and running, the U.S. federal courts continue pushing the detainees’ cases ahead toward resolution. After briefing by the parties on their competing definitions of “enemy combatant,” U.S. District Judge Richard J. Leon yesterday announced a ruling…