Brookings: Experts - Robert M. Chesney

A Preview of Likely Terrorism-Related Charges Against Tsarnaev

Robert M. Chesney — Mon, 22 Apr 2013 12:07:00 -0400

There will be no shortage of charges in the indictment that will issue against Tsarnaev shortly. Many if not most will be ordinary violent-crime charges rather than terrorism-specific ones–though they’ll be no less potent for that. But what about charges from among the set of offenses enumerated in the “Terrorism” chapter of U.S. Code Title 18 (i.e., chapter 113b)? Here are the leading possibilities (including three capital offenses):

1. I fully expect to see a count under 18 USC 2332a, aka the “Use of Weapons of Mass Destruction” statute. Don’t be thrown off by that WMD reference in this statute. That statute defines WMD extremely broadly, including more or less any explosive device–and certainly the devices used in this instance. Section 2332a carries the death penalty for circumstances where the offense caused death. The only tricky aspect with 2332a is the requirement that one of the following four conditions be met (these conditions are required where the charge involves an attack within the US other than an attack on federal personnel or facilities):

A. the mail or any facility of interstate or foreign commerce is used in furtherance of the offense

B. such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;

C. any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or

D. the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce.

It seems to me that the government might have a case under subpart (C) in light of the older brother’s trip to Russia, but we’ll have to see what is revealed on that front over time. Subpart (D) seems the more likely hook given the scale and context of this attack.

2. Another capital charge that might be available from chapter 113B is 18 USC 2332b (“Acts of Terrorism Transcending National Boundaries”). There are several moving parts here, but the pivotal one is that some element of this plot had to involve activity abroad. Again, the older brother’s trip to Russia may well prove to have been part of this story, but that remains to be seen I suppose. Even if the government has intelligence suggesting that this is so, however, it might be that the nature of the intelligence precludes its use in court (imagine, for example, that the Russians provide the information but for whatever reason–protecting a source or method most likely–they refuse to allow it to be used in a court proceeding).

3. Next up: 18 USC 2332f (paraphrased title: bombing public places). This is another capital charge, and another complicated statute with many moving parts. The core coverage of the statute is for bombings in public places, which is applicable here, but there is an additional complicated jurisdictional requirement where the attack is in the US:

(b) Jurisdiction.— There is jurisdiction over the offenses in subsection (a) if—

(1)the offense takes place in the United States and—

A. the offense is committed against another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

B. the offense is committed in an attempt to compel another state or the United States to do or abstain from doing any act;

C. at the time the offense is committed, it is committed—

(i)on board a vessel flying the flag of another state;
(ii)on board an aircraft which is registered under the laws of another state; or
(iii)on board an aircraft which is operated by the government of another state; D. a perpetrator is found outside the United States;

E. a perpetrator is a national of another state or a stateless person; or

F. a victim is a national of another state or a stateless person;

It may well turn out that a case could be made under (B) above, but we’ll have to wait and see about that. But it’s not necessary. Look at subpart (F), and recall that one of the victim’s is a Chinese national (a student). So there you go. 2332f(d)(3) does further limit the statute’s reach in that particular scenario, specifying that when jurisdiction is predicated on (b)(1)(F) there must also be an impact in interstate commerce. Satisfied here, I think.

4. Material Support charges under 2339A or 2339B? Hard to say at this point, without further information. But also not terribly important that these be made to work. 2339A and 2339B are very important in cases not actually involving particularized plots, but where as here you have a completed attack, the statutes mentioned above matter far more.

Authors

Robert M. Chesney

Publication: Lawfare

Image Source: © Jim Bourg / Reuters

Drones and the War on Terror: When Can the United States Target Alleged American Terrorists Overseas?

Robert M. Chesney — Wed, 27 Feb 2013 00:00:00 -0500

Editor's Note: On February 27, 2013, Robert Chesney testified before the House Committee on the Judiciary on the topic of drones and the war or terror.

Chairman Goodlatte, Ranking Member Conyers, and members of the committee, thank you for the opportunity to testify today.

In the pages that follow, I consider whether there is a useful—and constitutional—role that the judiciary might play in connection with the use of lethal force against U.S. persons overseas for counterterrorism purposes. I conclude that there is, though that role is a narrow one requiring very careful calibration. Before explaining that conclusion, however, I wish to make two threshold points.

First, this conversation should focus on the use of lethal force against U.S. persons (i.e., citizens and lawful permanent residents) without respect to the weapons or weapons platform that might be involved. It is true that we have grown accustomed to equating lethal force in the counterterrorism setting with the use of "drones" (i.e., remotely-piloted aircraft). That is perhaps to be expected; drones are the focus of intense public curiosity and media scrutiny, and important policy questions arise as a result of their particular capacity for loitering, gathering intelligence, striking with immediacy, and projecting force into regions that are not easily accessible by ground forces. But if the task at hand is to identify the legal boundaries hemming in the government's capacity to use lethal force overseas against U.S. persons, then it is a mistake to frame the issue solely in terms of drones. The same issue would arise, after all, if we were speaking instead of missiles launched by manned aircraft, sea-launched missiles, shells from artillery, or bullets from a rifle. Below, therefore, I refer to the use of lethal force without specifying particular weapons or weapons platforms.

Second: Though I conclude below that some form of judicial review in this setting would be permissible as a constitutional matter and desirable as a matter of policy under certain conditions, I do not mean to suggest that such review is strictly required by current law, still less that the government acted unconstitutionally in using force in the particular case of Anwar al-Awlaki or that the positions set forth in the Justice Department’s White Paper are incorrect. On those matters, I am in general agreement with the views set forth by Benjamin Wittes and John Bellinger in their testimony today.

Having said that, I turn now to my primary focus: What can and should Congress do, going forward, with respect to the potential role of the judiciary in decisions to use lethal force against U.S. persons abroad for counterterrorism purposes? I start with an overview of the distinct constitutional issues implicated by this subject, and then turn to a survey of the options for judicial review. In addition, I also provide a concluding section that highlights larger trends that are destabilizing the overall legal architecture of U.S. counterterrorism policy, separate and apart from the issue of targeting U.S. persons in particular.

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Authors

Robert M. Chesney

Publication: House Committee on the Judiciary

A Guide to the National Defense Authorization Act

Robert M. Chesney and Benjamin Wittes — Mon, 19 Dec 2011 09:51:00 -0500

The volume of sheer, unadulterated nonsense zipping around the internet about the National Defense Authorization Act (NDAA) boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.

What exactly does the NDAA do?

The NDAA is a spending authorization bill for the military for fiscal year 2012. At more than 1,000 pages, it does a great many things. Almost all of the controversy about it, however, deals with a single portion of the bill: “Subtitle D–Counterterrorism.” This subtitle contains a number of provisions related to military detention of terrorism suspects and the interaction between military detention and the operation of the criminal justice system. Broadly speaking, the controversy relates entirely to the following provisions:

Section 1021 codifies the Obama administration’s claimed authority to detain Al Qaeda and Taliban fighters and those from allied forces by “affirm[ing] that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.” The bill defines “covered person” as either “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” It defines “disposition under the law of war” to include (1) “Detention under the law of war without trial until the end of the hostilities,” (2) trial by military commission, (3) trial by “an alternative court or competent tribunal having lawful jurisdiction,” and (4) “Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.” Note that this third option–trial by an “alternative court”–encompasses a civilian criminal prosecution, thus making trial in federal court, legally speaking, into a “disposition under the law of war.”
Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”
Section 1023 requires minor adjustments to the President’s executive order setting up a review mechanism for detainees held at Guantanamo Bay.
Section 1024 mandates the creation of new–and quite generous–procedures for determining the status of detainees held in military custody. The provision requires that, regardless of where detainees are held, the procedures “shall provide . . . in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war”: a hearing before a military judge, who will make his status determination, and representation by military counsel in that proceeding if the detainee so chooses. These procedures can be applied as a matter of discretion where habeas is available–if, for example, you imagine a new detainee brought to Guantanamo or at any hypothetical facility in the United States. At Bagram and elsewhere, by contrast, they would seem to require a significant enhancement of process for detainees slated for long-term detention.
Sections 1026 and 1027 prevent the use of federal funds for building detention facilities in the United States or transferring Guantanamo detainees to domestic facilities or releasing them into the United States. It effectively continues a congressional policy of preventing more Article III criminal trials of Guantanamo detainees and preventing the construction of alternative facilities that would enable President Obama to fulfill his promise to shutter Guantanamo.
Section 1028 prevents overseas transfers of Guantanamo detainees in the absence of a rigorous certification by the Secretary of Defense that they will not pose a danger. Such a requirement under current law has effectively ground to a halt efforts to resettle certain Guantanamo detainees. This version’s certification requirement allows slightly more flexibility, though it’s not clear whether that difference will be meaningful in practice.

Does the NDAA expand the government’s detention authority?

Nope. Under current law, the Obama administration claims the authority to detain:

persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

That claim of authority is based on the Authorization for Use of Military Force (“AUMF”) passed by Congress shortly after the September 11 attacks, as informed by the law of war. The Bush Administration previously claimed very similar authority, albeit invoking not just the AUMF but also the inherent power of the President under Article II of the Constitution. In any event, such claims have been subjected to judicial challenge repeatedly, most commonly in the context of the Guantanamo detainee habeas litigation. As we explain below, the courts have had a decidedly mixed reaction in the pair of cases involving persons captured within the United States, but as for persons captured abroad, they have largely endorsed the government’s position. The D.C. Circuit, in fact, has tentatively adopted a definition of the class detainable under the AUMF that is, if anything, broader than what the administration seeks. While the administration–and now Congress–would detain only on the basis of “substantial support,” the D.C. Circuit has articulated a standard which would permit detention of those who “purposefully and materially support” the enemy, even if not substantially.

In light of all this, a law that writes the administration’s successful litigating position into statute cannot reasonably be said to expand the government’s detention authority. In fact, to the extent that the new statutory language will preempt the arguably broader D.C. Circuit definition, it may actually narrow it–if only very slightly. So let’s compare the language of the administration’s claimed authority (quoted above) to the language of the NDAA:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

They are almost verbatim the same. The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not–notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.

The one area in which the NDAA could theoretically be said to expand detention authority involves people held on the basis not of membership in an enemy group but mere support for one. As noted above, the government has long claimed this authority already, and the DC Circuit has in fact endorsed a slightly broader formulation. But so far, anyway, it has done so in dicta only–that is, not in any case where the fact pattern actually depended on the resolution of that issue. In theory, then, the circuit (or the Supreme Court) might at some point have concluded that support alone is insufficient to support a detention. The NDAA will ensure that this does not happen by making clear that independent support does count as a ground for detention (or at least it will do so as a matter of statutory interpretation; in theory, the door would remain open to some form of constitutional challenge, though it is difficult to see how that would work). So even as it marginally narrows the detainable class, the NDAA also tends to ensure that courts will not narrow the scope of that class further.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched–that is, governed by pre-existing law, which as we explain below is unsettled on this question.

The confusion associated with the NDAA’s treatment of the citizenship issue is understandable. First, the NDAA’s text relevant to this question changed quite a bit over time. Second, the relationship of the NDAA to pre-existing detention authority is difficult to follow if one does not keep up with this area regularly. So let’s begin with an overview of that pre-existing authority, before turning to the NDAA itself.

During the administration of George W. Bush, the government used its detention authority under the AUMF (described above) in two instances involving U.S. citizens. The first involved Yaser Hamdi, who was captured by Northern Alliance forces in Afghanistan in late 2001 and then later turned over to U.S. forces. He was at GTMO when the government determined he had a claim to US citizenship by virtue of having been born in Louisiana, and accordingly the government moved him to a military facility within the United States. A habeas proceeding followed, and ultimately went all the way to the Supreme Court. In 2004, the Court held that (i) the government’s authority to detain under the AUMF at least included armed members of the Taliban captured in Afghanistan (at least so long as fighting continued there), (ii) citizenship was no bar to detention in that circumstance, and (iii) citizenship did, however, entitle a detainee to a fair opportunity to contest the factual claims asserted by the government in support of detention.

Meanwhile, the government had arrested a suspected al Qaeda member–and U.S. citizen–named Jose Padilla, taking him into custody at O’Hare Airport in Chicago. He eventually ended up in military custody, and he too brought a habeas proceeding. To make a long story very short, his case first proceeded through the Second Circuit Court of Appeals, a panel of which concluded that detention authority under the AUMF did not apply to a citizen suspected of being an al Qaeda member and captured in the U.S. After the Supreme Court required the petition to be refiled and relitigated in the Fourth Circuit (because that is where Padilla actually was held), a district court judge took the same position, but on appeal a Fourth Circuit panel held that Padilla could lawfully be detained after all–though in so holding, the panel focused on the factual assumption that Padilla had, like Hamdi, been on the battlefield in Afghanistan previously. The case was then set to go before the Supreme Court, but before it could weigh in on the merits, Padilla was shifted into civilian custody for a criminal trial (he was convicted, and is now in prison).

The government has not asserted authority to detain a citizen under the AUMF since this time, so the question of citizen detention has remained unsettled ever since. Which brings us at last to the NDAA.

An earlier version of the NDAA in the Senate contained language that strongly implied, without quite saying it, that citizens were included within the general grant of detention authority discussed above (see Bobby’s contemporaneous assessment here). This generated much debate and criticism, and eventually a group of senators offered an amendment to state explicitly that citizens could not be detained under the NDAA’s restatement of detention authority. That amendment was rejected, and at that point, Senator Feinstein offered a compromise, fall-back amendment stating simply that nothing in the NDAA should be taken to address this issue one way or the other. The explicit idea was to preserve the unsettled status quo described above, leaving it to the courts to determine if detention authority extends to citizens should the government ever again attempt to assert it (see here and here). That is the position on which the NDAA has now settled (here).

A final note: As Steve points out here, the courts may in the end adopt a “clear statement” requirement in relation to the citizen detention question. That is, they may hold that Congress must explicitly grant such authority before a statute like the AUMF or the NDAA can be read to grant it. If that occurs, of course, that likely will be the end of the matter, particularly in light of the explicit effort in the NDAA to remain agnostic rather than take sides on the question.

Does it mandate military detention of terrorist suspects?

Not really, though both supporters and critics seem quite sure that it does.

As we describe above, the NDAA clarifies that the government possesses detention authority as an option in cases involving members and non-member supporters of al Qaeda, the Taliban, and “associated forces.” The NDAA then goes on to impose certain requirements in cases involving a subset of that detainable group. The important questions are: Who is in this subset? When must that categorization decision be made? What exactly is mandatory when a person does turn out to be covered? And can the government still find a way to use the civilian trial option instead? The answers to all of these questions make the mandatory detention provision a lot less mandatory than it used to be, and a lot less mandatory than people think.

Who is covered? Not all detainable persons are subject to the so-called “mandatory detention” provision. Rather, it only applies to the subset of detainable persons who are (i) members (not independent supporters) of (ii) al Qaeda or its associated forces (not the Taliban or its associated forces). Even then, it applies only in the subset of circumstances in which the person is linked to a specific terrorist attack. The paradigm here is someone like Umar Farouk Abdulmutallab, the AQAP member who tried to set off a bomb in his own underwear on a flight inbound for Detroit.

When must a categorization decision be made? Once the government determines that a captured person is in this special class, it is mandatory to hold him or her in military custody pending the selection of one of several disposition options enumerated in the statute. Of course, prior to the point in time that the categorization decision is made, this mandate does not kick in. Since we can readily imagine circumstances in which it is, in fact, quite hard to say whether a person was a member of al Qaeda or an associated force, or whether the person’s linkage to some terrorist plot suffices to satisfy that dimension of the covered person definition, it is easy to imagine that in some instances it will take a very long time to make this threshold determination and that in others, the determination won’t actually be possible at all. The NDAA, interestingly, does not impose any particular deadline on this decision-making process, nor does it impose conditions as to who must act as the ultimate decisionmaker, what standard of proof that person must employ, and so forth. Rather, the NDAA calls for the White House to promulgate procedures to flesh out its decision-making process in whatever way it sees fit. So, there is room for a fair amount of flexibility here.

What exactly is required for persons who are covered? Once the government determines that a captured person is covered, it must hold the person in military detention . . . but only pending disposition “under the law of war.” Now, at first blush, that just sounds like a reference to more military detention, or perhaps also a trial by military commission. But the NDAA, as we noted above, provides an interesting definition of what counts as a disposition “under the law of war.” Yes, both long-term military detention and trial by military commission are on the list, but so too are transfers to third-country custody and, most notably, trial by an alternative tribunal–and as the congressional debate made clear on many occassions, that last bit of language includes the option of a civilian criminal trial.

Can the government avoid having to use military detention in such cases? Yes. First, as explained above, the government does not have to use military detention until it determines that the person qualifies, which may take a great deal of time. Second, if the government is prepared to select the civilian prosecution option as its prefered disposition “under the law of war,” it can in theory make that determination simultaneously with its determination that the person is covered to begin with, leaving no moment when the person must be shifted over to military custody. Third, even if the government for some reason is unwilling to make such a contemporaneous determination, the statute expressly provides a “waiver” mechanism that simply turns that mandatory detention requirement off altogether, upon a written determination by the president–or some lower-level designee–that a waiver is in the interests of national security.

Of course, there are genuine political costs associated with pursuing either of these options. The NDAA for better or worse sets military detention as a quasi-default position for covered persons, and selecting a different option through either of these methods will be a visible, discrete act that can then become the basis for criticism.

Does it prevent the closure of the detention facility at Guantanamo Bay?

Yes. The NDAA does three things that make it impossible, at least during fiscal year 2012, for President Obama to fulfill his promise to close the detention facility at Guantanamo Bay. It forbids him to spend any money readying an alternative site to house detainees in the United States. It forbids transfers of detainees to the United States. And it makes it difficult–though a little less difficult than it is under the current spending restrictions–to transfer detainees to third countries. To close Guantanamo, the administration would have to transfer a bunch of detainees to other countries, and it would have to move a bunch of other detainees to some alternative facility. So as long as these restrictions exist in U.S. law, Guantanamo is going nowhere.

These restrictions, it is worth noting, are already in current law. So while they are (in our opinion) bad ideas, they are by no means new the NDAA.

Does it prevent civilian criminal trials of terrorism suspects?

Yes and no. The restriction on transfer of Guantanamo detainees to the United States prevents civilian trials for anyone there. And earlier versions of the bill would have made it either difficult or impossible (depending on which version) to bring new captures to trial. But final version of the bill does not prevent civilian criminal trial for new captures, though it does authorize military detention as an alternative and, in some cases, as a default option.

Does it repeal the Bill of Rights?

No federal statute can repeal the Bill of Rights. To the extent any provision of the NDAA is found to conflict with any provision of the Bill of Rights, it will not survive constitutional scrutiny.

So if it doesn’t significantly expand the government’s detention authority, doesn’t authorize detention of citizens, doesn’t really mandate the military detention of other terrorist suspects, and doesn’t do more to prevent the closure of Gitmo than does current law, what’s all the fuss about? Is it even important?

The final bill is, indeed, far less consequential than earlier versions would have been. Much of the fuss is overblown. That said, the bill has several important elements:

The codification of detention authority in statute is a significant development, not because it enables anything that Congress had previously forbidden but because it puts the legislature squarely behind a set of policies on which it had always retained a kind of strategic ambiguity–a tolerance for detention without a clear endorsement of it of the sort that would make members accountable. Congress has now given that endorsement, and that is no small thing.
The transfer restrictions will continue to have negative effects on administration management of detainee affairs, reducing flexibility and agility and compelling the continued detention of people the administration does not want to detain, in a status the administration does not wish to use, and at a facility it would prefer to vacate. That this is no change from current law–indeed, that the NDAA offers slightly more flexibility than does current law–does not make these restrictions any less troublesome.
The rump mandatory detention provision remains a bit of a wild card that could have mischievous effects in practice. Though it ends up requiring very little, it does impose–as we have described–a default option of military detention for certain categories of cases. And this option might prove politically difficult to jettison.

Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

Yes, actually, there is. Section 1024 of the bill, as we’ve noted, requires that people subject to long-term military detention in circumstances not already subject to habeas corpus review–think the Detention Facility in Parwan, Afghanistan–henceforth shall have the right to a military lawyer and a proceeding before a military judge in order to contest the government’s factual basis for believing them to be subject to detention. This is an extraordinary and novel development. Detainees in Afghanistan currently have access to the Detainee Review Board process, which as described in this article already provide a relatively robust screening mechanism, particularly compared to years past. The DRB process does not include lawyers and judges, however, and human rights advocacy groups have criticized them on this ground. Requiring lawyers and judges to staff out the screening process is a pretty remarkable shift in the direction of accomodating those concerns.

What’s more, while human rights groups have decried the codification of detention authority, the codification does preclude certain interpretations of the AUMF that human rights groups hated. For example, while the difference between the D.C. Circuit’s embrace of the “purposefully and materially support” standard and the administration’s language seems pretty slight, the D.C. Circuit language did–which the NDAA now jettisons–keep critics up at night. And the D.C. Circuit famously flirted in one case with the notion that international law does not inform or limit detention authority under the AUMF–a position that the explicit references to the “law of war” in the NDAA seems to reject.

In short, the bill is a mixed bag–almost no matter what vantage point one examines it from.

Authors

Publication: Lawfare

Image Source: © POOL New / Reuters

Targeting Citizens and the Fifth Amendment: The Operational/Non-Operational Distinction, and the Question of Known Citizens as Collateral Damage

Robert M. Chesney — Tue, 04 Oct 2011 15:27:00 -0400

Over at Slate, Will Saletan has an interesting post up querying whether the Fifth Amendment analysis potentially underlying the decision to kill al-Aulaqi—broken down into requirements that the person be otherwise targetable in connection with al Qaeda, that the person pose an imminent threat, and that the person be located in a place where capture is not a feasible alternative—really adds anything beyond what already is required to justify an attack against a non-citizen. Will’s point is that (i) we are only resorting to drones in circumstances where captures in general aren’t feasible and (ii) the temporal loosening of “imminent” makes the threat test largely toothless. As a result, he concludes, a citizen associated with al Qaeda is no less likely to be targeted than any other al Qaeda member. I think, however, that there likely is an important additional element built into the imminent-threat prong of the test: the nature of the person’s role. I don’t think it is accidental that the government has emphasized al-Aulaqi’s migration from idealogue to operational leader with hands-on involvement in particular plots (a point Ben emphasizes in another Lawfare post here). The government’s due process analysis should treat this as a weighty factor in the analysis, and I suspect that it probably does (to be clear, I’m not privy to that analysis—I’m just speculating based on what I think the correct analysis actually is).

Now, does this mean that Will’s bottom line is wrong? That’s hard to say. The same strike that killed al-Aulaqi also killed Samir Kahn (as Alan notes here)—another American member of AQAP, one who so far as I know was not involved in operational planning but who was a key propagandist (playing a major role in producing AQAP’s english language webzine Inspire). The million dollar question, from the point of view of the issue Will raises, is whether it would be consistent with the Fifth Amendment to have targeted Samir Kahn standing alone (or, if you prefer, killing “core” al Qaeda propagandist-and-US-citizen Adam Gadahn). I’m willing to bet that there have been fierce internal debates about this, and would not be surprised if the OLC memo turns out to draw exactly this distinction.

If that is the case, it also raises an interesting further question when a non-targetable citizen is in the company of someone who can legitimately be targeted. From an IHL perspective, the relevant constraint is proportionality, brought to bear through a collateral damage analysis. But does the Fifth Amendment offer the same leeway in this setting? That is to say: If you cannot directly target Samir Kahn in light of the Fifth Amendment, is it ok to knowingly kill him while formally targeting another person with whom he happens to be riding? Note that this issue might not have arisen in this instance—I don’t think we know that the government knew Kahn was in the car with al-Aulaqi. And of course I could be wrong in speculating that about a operational/propogandist distinction being drawn for Fifth Amendment purposes. In any event, this will be an interesting issue to look for should the apparent OLC memo be released.

Authors

Robert M. Chesney

Publication: Lawfare

Image Source: Â© POOL New / Reuters

Web Chat: Libya and the War Powers Resolution

Robert M. Chesney — Wed, 22 Jun 2011 00:00:00 -0400

The legal debate over U.S. military involvement in Libya continues, with some members of Congress seeking to force explicit approval under the War Powers Resolution and others likely to force a vote to deny funds for future military efforts.

On June 22, Brookings expert Robert Chesney took your questions, in a live web chat moderated by POLITICO, on the War Powers Resolution and how it applies to the situation in Libya. The transcript of this chat follows.

12:31 David Mark: Welcome to the chat. Let's get started.

12:31 [Comment From John: ] Explain the “clock” that runs under the war powers resolution. What does it require, and where are we in the process?

12:33 Robert Chesney: The War Powers Resolution ("WPR") specifies that when U.S. armed forces are in "hostilities" are in circumstances where hostilities are imminent, the president must submit a report to Congress, and this in turn starts a 60-day clock. The idea is that Congress must affirmatively authorize the operation within that window, or else it must extend the window (and the president has an option of taking another 30 days to withdraw). We are well past the 60 day point (I believe we're at day 93, roughly).

12:33 [Comment From Mark from Greenbelt: ] What is the Obama administration’s argument that Libya does not fall under the act? What’s the counter argument?

12:37 Robert Chesney: The argument is that the word "hostilities" in the WPR has a particular, and relatively narrow, meaning in this setting (i.e., "hostilities" is a term of art requiring reference, just in this setting, to a particular definition). The WPR does not actually define the word, of course. The administration's view appears to be that not just any circumstances of U.S. involvement in fighting will count. Rather, "hostilities" occur for WPR purposes only where something akin to a full-scale armed conflict with sustained, relatively high-intensity kinetic operations by U.S. forces occur. In the present circumstance, we have only limited direct involvement in kinetic operations (periodic drone strikes, and apparently periodic manned aircraft strikes), while the rest of our involvement is in the nature of (important) support for the kinetic operations of our NATO allies.

12:38 [Comment From Cynthia: ] We’re conducting airstrikes and dropping bombs in Libya. How can that be interpreted as anything other than military hostilities?

12:41 Robert Chesney: This goes to the heart of the problem for the administration's analysis. From a lay perspective, it just seems silly to say that we're not engaged in hostilities. But, to be clear, the administration's argument (discussed above) is not coming out of nowhere. The meaning of "hostilities" has come up over time in contexts where U.S. forces were deployed abroad (e.g., peacekeeping operations) and were at risk of or actually were being attacked. In that setting, past administrations have argued that there must be a threshold of intensity and frequency crossed before you have WPR hostilities. The question today is whether that logic, which makes a lot of sense when we are not on the offensive but rather are being attacked on a small scale, should extend to something like Operation Unified Protector (the current label for our Libya operation).

12:41 [Comment From Chico: ] Suppose Congress does force a vote to deny funds for future military efforts - what does that mean in a literal sense?

12:43 Robert Chesney: This probably won't happen, as the Senate leadership appears to support the operation. But let's say it does. That can and should end the operation. If nothing else, most everyone in these legal debates agrees that Congress in the exercise of its constitutional authority over the budget can stop military action by cutting off funding for it. There probably are fact patterns we can think of where it's not quite that simple, as where there is a need for some continued spending simply to safely extricate troops...but that's not at all the case here.

12:43 [Comment From Michelle W.: ] Are Department of Justice lawyers in disagreement with White House lawyers? And is that unusual?

12:47 Robert Chesney: One of the strangest aspects of the unfolding story has to do with the process by which the administration apparently came to its current position on the WPR issue. The media reported this weekend that lawyers at the Defense Department and the Justice Department's Office of Legal Counsel ("OLC") concluded that Operation Unified Protector constitutes "hostilities" under the WPR. In contrast, lawyers at the State Department and the White House Counsel's Office concluded otherwise, and the president took their view. This generated lots of criticism, on the theory that OLC's views ordinarily should be conclusive (and on the theory that the usual process in which OLC marshal's the views of the other agencies may not have been complied with here). But to be clear, the president is in no sense legally bound by OLC's views, nor obliged to follow the usual OLC process (though there are many strong reasons why president should follow that process). It rarely happens, but isn't wrong per se.

12:48 [Comment From Giambo: ] So the Congress can't stop the war in Libya?

12:49 Robert Chesney: They can stop it today if they want to cut off funding. There are proposals in the House at least to do so. Of course, it's not that easy. Let's say Congress puts a funding cut-off in the currently pending National Defense Authorization Act. The president could veto the bill, and Congress probably could not muster 2/3 of both houses to override the veto. But it's not clear that the president would veto such a bill.

12:49 [Comment From Shawn: ] What about the involvement of NATO? Does it change the argument if an international coalition is taking action, and the U.S. is just a part of the coalition?

12:53 Robert Chesney: This is a really important point. Some have suggested that this is no longer a matter of "U.S." armed forces involved in hostilities, but rather NATO armed forces. That argument is unpersuasive. Note that Admiral Stavridis (U.S. Navy) is the military commander of NATO forces, and section 8(c) of the WPR actually anticipates this situation to some degree in that it refers explicitly to the situation in which U.S. personnel are in command of or attached as advisers to foreign forces engaged in hostilities. To be sure, this language was drafted in light of the Vietnam/Cambodia/Laos experience, with an eye toward military advisers rather than the NATO structure. But the language of the statute nonetheless is plenty broad enough to encompass the NATO scenario.

12:53 [Comment From Danielle: ] What’s the difference between what the Constitution says about declaring war and the statute?

12:57 Robert Chesney: It is fascinating how little attention the underlying constitutional question gets in comparison to the WPR question! Maybe this is because the constitutional question came up at the outset before concerns about the Libya operation became more sensitive, or maybe it's because the WPR clock is such a dramatic and accessible cue for paying attention. Either way, surely the constitutional question is at least as important. So, here is the deal in a nutshell: Scholars disagree sharply about the extent to which the president may use armed force without Congressional authorization. Most everyone agrees he can at least do so as a matter of national defense, but if instead it is a matter of foreign policy, there is much dispute. The administration in this case argues that the Congressional prerogative to decide to go to war attaches only when the situation is sufficiently sustained and intense to amount to "war" in the constitutional sense. It is, in many ways, similar to the WPR argument, though not exactly the same.

12:58 David Mark: Thanks for the chat, folks.

Authors

Robert M. Chesney

Image Source: © Mohammed Salem / Reuters

Transfers of Guantánamo Detainees to Yemen: Policy Continuity between Administrations

Robert M. Chesney, Matthew Waxman and Benjamin Wittes — Wed, 15 Jun 2011 09:57:00 -0400

The following is a written briefing paper to the House Armed Services Subcommittee on Oversight and Investigations by Benjamin Wittes, Matthew Waxman, and Robert Chesney, examining the problem of transfers of Yemeni detainees from Guantánamo Bay.

Thank you for the opportunity to brief the subcommittee on the problem of transfers of Yemeni detainees from Guantánamo Bay. Yemeni transfers have, since the Christmas Day bombing attempt and the rise of Al Qaeda in the Arabian Peninsula, become an area of considerable political rancor. The rancor is, in our judgment, unwarranted. As we shall explain, transfer policy towards Yemen has been a matter of institutional continuity between administrations, a matter in which policymakers face no good options, and a matter in which there is currently no dispute between the political parties. To put the matter simply, both the Bush Administration and the Obama Administration have been appropriately cautious about transferring detainees to Yemen. Republicans and Democrats and Congress and the administration all agree that conditions in Yemen will not permit the transfer of detainees to that country at this time. There are many aspects of detention policy that are genuinely in dispute. This is not one of them.

This paper represents the views of three analysts who have considered transfer issues from a variety of different scholarly and governmental perspectives. Benjamin Wittes, a senior fellow at the Brookings Institution, is the author or editor of three books and numerous reports and papers on matters related to detention policy. Matthew Waxman, an associate professor at Columbia Law School, served as Deputy Assistant Secretary of Defense for Detainee Affairs from mid-2004 through 2005 and as a senior State Department official advising on detainee issues in 2006-2007. Robert Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, has written extensively about detention and transfer issues and in 2009 served with the administration’s Detention Policy Task Force. In this briefing paper, we lay out, first, why Yemen has proven such an intractable problem in the disposition of Guantánamo cases; second, how both the Bush and Obama administrations cautiously explored a variety of options for the transfer of Yemeni detainees and why those options ultimately did not pan out; and, third, how this has left American policymakers with no viable options for the large-scale reduction of the Yemeni population of Guantánamo. Finally, we discuss why the difficulties associated with Yemeni transfers should not handcuff other transfer efforts.

The Problem of Yemen

What to do with Guantánamo’s large population of Yemeni detainees has proven exceptionally difficult for two successive administrations, both of which have treated the matter with great caution. Yemen is unique among the countries which contributed large numbers of detainees to the larger Guantánamo population. It has long been teetering on the edge of state failure. Unlike Saudi Arabia, it has never had a strong central government with which the United States could work to manage the threat posed by transferred detainees. Whatever one thinks of the effectiveness of the Saudi reintegration program—whose successes and failures are the subject of legitimate debate—the Saudi government has both significant policy instruments and substantial institutional resources to deploy in dealing with transferred detainees. The Yemeni government, even before the current crisis, has always lacked similar capacity. Furthermore, it has proven to be a difficult negotiating partner, rarely presenting consistent positions on repatriation and behaving erratically with respect to detainee issues. Major jailbreaks by terrorists and militants, along with occasional Yemeni government releases of high-value al Qaida prisoners, also eroded the U.S. government’s confidence in Yemen’s commitment and capacity to deal with these issues effectively.[1]

Moreover, unlike the other weak state that contributed large numbers of detainees to Guantánamo —Afghanistan—Yemen does not have large numbers of U.S. troops on the ground helping to build capacity to handle returned detainees. What’s more, it is difficult to imagine large numbers of Yemenis being resettled in third countries in Europe or elsewhere in an effort to place in them in locations where effective governments might take appropriate steps to deal with them. Unlike detainees who fear persecution at the hands of their home countries and on whom the United States can thus rely not to return to those countries voluntarily, Yemenis resettled in third countries might well pick up and head home—and most countries will not prevent this—thus frustrating the very objectives of such third-country resettlement.

The result is that the executive branch institutionally has confronted in Yemen an unusually intractable problem that has resisted all of the persistent and creative efforts over a long period of time—by both the Bush administration and the Obama administration—to reduce the Guantánamo population.

The Efforts of Two Administrations

It has become fashionable to discuss transfer efforts in general—and those involving Yemen and Yemenis in particular—as reckless and hasty and done with inadequate attention to security concerns. While the question of recidivism is an important one, and there have been certain high-profile Saudi detainees who have migrated to Yemen and there reengaged, there has certainly been no stampede of precipitous transfers to Yemen. Indeed, the very slow and cautious pace of transfers to that country is precisely the reason that the problem of Guantánamo has become, over time, a predominantly Yemeni problem. According to the best publicly-available data we have been able to collect, the Bush Administration transferred only 14 detainees to Yemen between March of 2004 and November of 2008.[2] The Obama administration, meanwhile, has transferred only eight detainees to Yemen, two of whom it transferred under court order.[3] These numbers are dramatically lower than the number of detainees released to both Afghanistan and Saudi Arabia.

The efforts of the Bush and Obama administrations with respect to Yemeni transfers have differed in some respects from one another, but these differences reflect changed circumstances more than different attitudes towards the problem of Yemen. And significantly, they have not produced substantially different outcomes. Rather, the overall approach has been remarkably similar and consistent—reflecting in both cases a great hesitancy about releasing large numbers of detainees to a country with so little control over its own affairs.

Broadly speaking, the Bush administration was interested in large-scale repatriation opportunities as a principal means of reducing the Guantánamo population. The Bush administration specifically explored a number of options for bulk releases of Yemenis.[4] In particular, it spent a great deal of energy working with the Yemeni government on creating a program modeled on the Saudi reintegration program—a program that was itself modeled on an earlier Yemeni program.[5] For the reasons described above, however, the bulk approach required conditions that Yemen did not present. So the Bush administration selectively released only 14 detainees to Yemen over the very years in which it removed hundreds of other detainees from Guantánamo—more than 530 of the nearly 800 who were ever held at the facility.

Around the time that the Obama administration took office, efforts to remove Yemeni detainees en masse expanded to include the possibility of sending some portion of the Yemeni population to Saudi Arabia to go through the Saudi reintegration program. The Obama administration spent a good deal of energy attempting to make this option viable.[6] By the fall of 2009, however, it had become clear that it would not pan out. What’s more, the situation in Yemen was not improving, and the U.S. government was losing a considerable number of Guantánamo habeas cases—raising the possibility of large numbers of Yemenis winning habeas cases and thus being ordered released by courts. Indeed, the administration clearly contemplated the possibility of being directed to release considerable numbers of Yemeni detainees as a result of habeas court judgments. More recently, the government’s victories in habeas cases in the D.C. Circuit Court of Appeals have dramatically altered this landscape, making the status quo—in other words, long-term detention of the Yemeni population until conditions in Yemen improve—much more realistic to imagine sustaining. But at the time, it would have been unwise to bet on this change in the litigation environment. The Obama administration thus faced a delicate pincer action, being caught between, on the one hand, litigation pressures to release potentially large numbers of Yemeni detainees and, on the other hand, conditions in the country that still would not, in the administration’s judgment, safely permit bulk transfers.

The administration responded by identifying three groups of Yemenis at Guantánamo. The first group included those who could not be safely transferred irrespective of conditions. The second included those who, in the words of the Guantanamo review task force, met minimal conditions for transfer and who might be transferred if “(1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.” The third group included those who met the conditions for transfer and could be transferred at any time “subject to appropriate security measures”—which the Guantánamo task force made clear “did not require immediate implementation.” The task force report emphasizes that,

by making each transfer decision contingent on the implementation of appropriate security measures, the review participants allowed for necessary flexibility in the timing of these transfers. Under these transfer decisions, detainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.

As a practical matter, it is reasonable to assume that perceived litigation risk played a significant role in whether detainees were placed in the second or third groups. Those slated for more immediate transfer tended to be those whom the administration believed to have strong habeas cases. Those slated for conditional transfer—that is, transfer when conditions improved—tended to be those whose longer-term detentions the administration believed the courts would tolerate.

The influence of the litigation pressure is explicit in the Guantánamo task force’s report with respect to those detainees the Obama administration has actually transferred to Yemen. Indeed, no detainee has been transferred to Yemen by the Obama administration except where the administration has either lost a habeas case or, to one degree or another, anticipated the possibility of losing it. The task force described the first seven releases as follows:

To date, only seven of the 36 Yemeni detainees approved for transfer have been transferred to Yemen. One was transferred in September 2009 pursuant to a court order, and six were transferred in December 2009. The six who were repatriated in December 2009 were selected by the unanimous agreement of high-level officials in the agencies named in the Executive Order, after further individualized reviews of the detainees, including consideration of threat-related information, the evidence against the detainees, and the government’s ability to successfully defend the lawfulness of their detentions in court (emphasis added).

The one additional detainee transferred since the task force report was also transferred pursuant to court order.

Finally, all Yemeni repatriation efforts effectively came to an end at the time of the Christmas bombing attempt, which provoked the current moratorium on transfers to Yemen. With conditions in Yemen rapidly deteriorating, there is no realistic chance of that moratorium’s being lifted in the near term; only court-ordered transfers and releases are therefore likely for the foreseeable future.

In short, both the Bush- and Obama-era transfers reflect great caution about the security situation on the ground. Both administrations sought to reduce the Yemeni population of Guantánamo while remaining sensitive to the reality of the unstable security situation in Yemen. Both explored options for doing so. Both ultimately assessed that security concerns outweighed the ambitions to transfer detainees out of Guantánamo.

Yemen Transfers Today

To put the matter simply, there is no likelihood today of the executive branch releasing dangerous detainees to Yemen. This is not because of legislative transfer restrictions. It is, rather, because the executive branch—under the Bush Administration and under the Obama Administration alike—has never let the desire to remove Yemenis from Guantánamo blind it to the reality of dealing with a weak state with limited capacity and willingness to mitigate the threat posed by released detainees. Particularly now, the situation in Yemen simply offers no serious short- or medium-term possibility of a permissive environment for repatriations of significant numbers of detainees, and the executive branch knows this.

The present risk, in our judgment, lies, rather, in the other direction. It is that overbroad legislative transfer restrictions intended to prevent releases of Yemenis—who, with or without such restrictions, are not going to leave Guantánamo—are encumbering reasonable repatriation and resettlement efforts for detainees from countries that do not pose challenges remotely comparable to those presented by Yemen. There are a number of current opportunities for the resettlement of Guantánamo detainees, opportunities which the legislative restrictions in place tend to frustrate. These restrictions are maintained largely out of fear of the situation in Yemen, but the chief effect is not felt by the Yemeni detainees. It is felt by others who, unlike the Yemenis, might plausibly be removed from U.S. custody to other countries where they would pose little risk of reengagement with the enemy.

The Yemeni detainees are going to wait—perhaps for a long time. They will wait either until a very unstable country stabilizes or perhaps until the United States and Saudi Arabia make some arrangement for transfers to the Saudi reintegration program—at least for those detainees with family in that country. This is a very difficult situation. Some of the Yemeni detainees were merely low-level fighters who—had they been from other countries—would have gone home long ago. Their situation may be a regrettable necessity. Generalizing the Yemen predicament to the rest of the Guantánamo population, however, is not a necessity. It is a mistake.

[1] See Mark Mazzetti, U.S. Is Intensifying a Secret Campaign of Yemen Airstrikes, N.Y. Times., June 8, 2011, available at http ://www .nytimes .com /2011/06/09/world /middleeast /09 intel .html ?_r =1&scp =1&sq =harithi &st =cse (describing Yemen’s capture, conviction, and release of an al Qaeda militant killed by a U.S. airstrike last week); Michael Isikoff, A Slap in the Face: Yemen’s Handling of Cole Bomber Stuns Bush Antiterror Chief, Newsweek.com, Oct. 31, 2007, available at http ://www .newsweek .com /2007/10/30/a -slap -in -the -face .html ; Mark Trevelyan, Jailbreak in Yemen Stirs Concerns Abroad, Boston Globe, Feb. 10, 2006, available at http://www.boston.com/news/world/middleeast/articles/2006/02/10/jailbreak_in_yemen_stirs_concern_abroad/; Gregory Johnson, Securing Yemen’s Cooperation in the Second Phase of the War on al-Qa’ida, CTC Sentinel, Dec. 2007, available at http ://www .ctc .usma .edu /wp -content /uploads /2010/06/Vol 1 Iss 1-Art 8.pdf.
[2]This figure has been widely cited in press articles. See, for example, Charlie Savage, “6 Detainees are Returned to Yemen,” New York Times, December 20, 2009, available at http ://www .nytimes .com /2009/12/20/world /americas /20 gitmo .html. With the exception of Salim Hamdan, who was transferred after the period it covers, the 14 detainees transferred to Yemen are identified in a declassified Defense Department list of all transfers from Guantánamo. The list is available at http ://www .dod .mil /pubs /foi /detainees /09-F -0031_doc 1.pdf.
[3]A discussion of the first seven of these transfers appears in the final report of the Guantánamo Review Task Force on page 18 and is quoted below. One additional detainee, Mohammed Odaini, was transferred in July 2010 after he prevailed in his habeas case. See, for example, Charlie Savage, “Rulings Raise Doubts on Policy on Transfer of Yeminis,” New York Times, July 8, 2010, available at http://www.nytimes.com/2010/07/09/us/09gitmo.html?scp=1&sq=Mohammed+Odaini&st=cse&pagewanted=print. One additional Yemeni detainee has been transferred from Guantánamo during the Obama administration, though this particular detainee was resettled in a third country.
[4]This was no secret. Indeed, the New York Times reported as far back as 2005 that the Pentagon was seeking to implement “a plan to cut by more than half the population at its detention facility in Guantánamo Bay, Cuba, in part by transferring hundreds of suspected terrorists to prisons in Saudi Arabia, Afghanistan and Yemen.” See Douglas Jehl, “Pentagon Seeks to Transfer More Detainees from Base in Cuba,” New York Times, March 11, 2005, available at http ://www .nytimes .com /2005/03/11/politics /11 detain .html. Later that same year, the State Department announced the initiative publicly; one of the present authors, then in government, said in an interview that the administration was seeking to “shift the burden [of detention] on to our coalition partners. We, the US, don’t want to be the world’s jailer.” See Tim Reid, “Guantánamo Inmates Face Transfer to Native Jails,” The Times, August 6, 2005, available at http ://www .timesonline .co .uk /tol /news /world /us _and _americas /article 552128.ece.
[5]These efforts too were well-publicized. See, for example, Shashank Bengali, “Obama’s Biggest Guantánamo Dilemma May Lie in Yemen,” McClatchy Newspapers, November 13, 2008, available at http ://www .mcclatchydc .com /2008/11/13/55827/obamas -biggest -Guantánamo -dilemma .html.
[6]The Obama administration discussed these efforts publicly. See, for example, Lara Jakes, “U.S. Hopeful on Yemeni Detainee Deal,” Associated Press, May 9, 2009, available at http ://www .guardian .co .uk /world /feedarticle /8492131.

Authors

Publication: House Armed Services Subcommittee on Oversight and Investigations

The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking

Thu, 12 May 2011 00:00:00 -0400

This paper is being maintained and expanded in collaboration with the Harvard Law School National Security Research Committee, a student practice organization that provides legal research services for academics and policymakers on a variety of national security law issues. (Last updated on March 29, 2013)

Introduction

For the seven years following the September 11 attacks, the American debate over the propriety of military detention of terrorist suspects focused on the question of whether federal judges could exercise habeas corpus jurisdiction over detainees at Guantánamo Bay, Cuba. The Supreme Court answered that question affirmatively in the summer of 2008, but in doing so, it declined to address a number of the critical questions that define the contours of any non-criminal detention system. Congress could have legislated with respect to these questions and sought to define the rules, but it has not done so to date.

Many civil libertarians and human rights activists have praised Congress’s inactivity, while some other commentators have leveled sharp criticisms. Whatever its merits, however, it is critical to understand that congressional inaction does not mean that the Obama administration has abandoned the option of non-criminal detention of terrorist suspects, nor does it mean that there exists no process to define the rules governing both current detentions and, at a minimum, those prospective detentions that take place at the base. Rather, the decision means that for good or ill, these rules will be written by judges through the common-law process of litigating the habeas corpus cases of the roughly 170 detainees still held at Guantánamo.

This state of affairs puts a premium on these cases not merely as a means of deciding the fate of the individuals in question but as a law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts might acquire habeas jurisdiction—although, as we discuss briefly below, the prospects for wider habeas jurisdiction are unclear. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts; indeed, they might even have an indirect but significant impact on superficially unrelated military activities, such as the planning of operations and decisions to target suspected enemy combatants with lethal force. In short, the legislature’s passivity to date combined with President Obama’s decision not to seek new law to address these questions have together delegated to the courts a remarkable task: defining the rules of military detention.

Despite the scope of their mandate, the courts’ actual work product over the past few years has received relatively little attention. The district and appellate court judges have not been idle; far from it. To date, district judges have issued 38 merits opinions covering 59 different detainees, and the D.C. Circuit Court of Appeals has issued 11 decisions on appeal. As we shall explain, these numbers do not give an altogether accurate picture of the litigation’s complexity, but the press has duly noted each of these decisions and has kept a running scorecard of detainee wins versus government wins. Yet at the same time, it has paid almost no attention to the broader contours of the law of detention that is emerging from these decisions.[1]

Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of non-criminal counterterrorism detention that is emerging from it. As we shall describe, the Supreme Court, in deciding that the federal courts have jurisdiction over habeas corpus cases from Guantánamo, gave only the barest sketch of what such proceedings should look like, leaving a raft of questions open for the district and appellate court judges:

Who bears the burden of proof in these cases, and what is that burden—which is to say, who has to prove what?
What are the boundaries of the President’s detention power—that is, assuming the government can prove that the detainee is who it claims him to be, what sort of person is it lawful to detain under the laws of war?
What sort of evidence can the government use?
And how should the courts handle hearsay and evidence that may have been given involuntarily?

None of these questions, and many others besides, has clear answers emanating from either Congress or the Supreme Court. On all of them, the lower federal court judges are making the law.

In January 2010, the Governance Studies department at Brookings released a paper entitled “ The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” In the paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the Executive Branch had effectively delegated the task of writing the law of detention. In the year that has followed, a great deal has changed. A number of appellate decisions have given the lower court considerable guidance on questions that were seriously contested when we published the original paper. Some of the parameters of the law of detention that were altogether unsettled then have come into sharper focus as a result. And lower court judges have, to some degree, fallen into line. On other issues, by contrast, the law remains more or less as it was then, uncertain and subject to greatly divergent approaches by district judges with profoundly differing instincts. While in some areas, in other words, the judges have developed relatively clear rules, in others they continue to disagree. And, as then, the D.C. Circuit may not prove to be the final word. Its decisions may be merely interim steps on the way to Supreme Court consideration—meaning that the entire law of detention as it stands now could prove to be a kind of draft, a draft whose parameters remain sharply disputed and that might be torn up at any time.

The original paper is, in many respects, thus an out-of-date account of this draft—no longer an accurate guide to what is contested and what is at least tentatively resolved. Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document—one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around.

Welcome to the Emerging Law of Detention, Version 2.0.

The sections of this report are adapted from those of the original paper, on which they significantly expand, and we expect to add additional sections as the case law develops. In some areas, the development has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law.

Two of the present authors have argued for detention legislation in the past and continue to believe congressional involvement is crucial to the healthy development of America’s detention system. We have also made no secret of having significant concerns about the habeas process as a lawmaking device, though it is essential to emphasize that we are not criticizing the judges in question, who have no choice but to decide the case that have come before them with whatever guidance they have been given. All that said, our purpose in this report is not to engage the debate over whether the United States needs detention legislation. It is, rather, to describe the developing system under the rule-making mechanism currently in place. We hope our description provides insights into the emerging law of detention for those who oppose, as well as for those who agree with, our views of contested current policy questions.

This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Court’s decisions recognizing federal-court jurisdiction over Guantánamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary. In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges’ approaches to the following questions:

the burden of proof;
the substantive scope of the government’s detention power;
the question of whether a detainee’s relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;
whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;
the use of hearsay evidence;
the use of evidence alleged to result from coercion; and
the government’s use of a “mosaic theory” of evidentiary interpretation.

We may add more sections, on issues like discovery, in the coming months and will endeavor to keep the existing sections current as new cases develop.

[1] For an important exception to this rule, see Chisun Lee, An Examination of 41 Gitmo Detainee Lawsuits, ProPublica, Jul. 22, 2009, http://www.propublica.org/special/an-examination-of-31-gitmo-detainee-lawsuits-722 (last updated Dec. 17, 2009).

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Authors

Benjamin Wittes
Robert M. Chesney
Larkin Reynolds
The Harvard Law School National Security Research Committee

The Courts' Shifting Rules on Guantánamo Detainees

Robert M. Chesney and Benjamin Wittes — Fri, 05 Feb 2010 09:39:00 -0500

One judge rules that a detainee's statements to his military review tribunal are tainted by past coercion — and orders him released. Within days, another judge rules that a detainee's statements to the same sort of tribunal are not tainted, despite similar abuse — and affirms his detention.

One judge rules that to justify a detention, the government must prove that a detainee poses a future threat -- and orders freed a Guantánamo Bay detainee who acknowledges a past relationship with al-Qaeda but has cooperated with authorities since his capture. Another judge rules that a detainee need not pose a future danger and permits the continued detention of a man whose future threat he describes as a "ludicrous" prospect.

President Obama's decision not to seek additional legislative authority for Guantánamo detentions, along with Congress's lack of interest in taking on the subject, means that, for good or for ill, judges must write the rules governing military detentions of terrorist suspects. But the judges hearing habeas cases from the nearly 200 detainees remaining at Guantánamo do not agree on what the rules should be. Indeed, on the most basic architectural features of any detention system, they disagree profoundly.

They disagree about what the government needs to prove for a court to sign off on a detention, about what evidence it may employ in doing so and about how deeply a court should probe material collected and processed for intelligence purposes. They disagree about the substantive scope of the government's detention authority — what sort of person the government may lock up under its power to wage war against al Qaeda and the Taliban. They disagree about whether and when a detainee can sever his relationship with enemy forces such that his detention is no longer a legal option. They disagree about how to handle hearsay evidence that courts in normal cases would eschew. And they disagree about how to handle detainee or witness statements alleged to have been extracted through abuse or in the aftermath of abuse.

So fundamentally do the judges differ on the basic design elements of American detention law that their differences are almost surely affecting cases' bottom lines. While it is impossible to be certain that any given case would have turned out differently had a different judge heard it, judges have articulated standards across a range of issues that, if applied to cases decided otherwise by their colleagues, would require different outcomes. That is, some detainees freed by certain judges would probably have had the lawfulness of their detentions affirmed had other judges — who have articulated different standards — heard their cases. And some detainees whose incarceration these other judges have approved are likely to have had habeas writs granted had the first group of judges heard their cases.

The chaos is not the judges' fault. It stems from decisions made above their pay grade in all three branches of government. The Supreme Court asserted jurisdiction over Guantánamo in summer 2008 but then coyly refrained from giving any guidance on the myriad important questions that the cases it authorized would predictably generate. The Bush and Obama administrations both declined to pursue legislation that might have guided the courts in adjudicating these matters. And Congress has shown a relentless tendency to play politics with Guantánamo rather than offer itself as a constructive partner for either administration. Their joint irresponsibility has produced an unprecedented delegation of a major legislative function to the courts — to a group of judges with different predilections, instincts and approaches to vexing questions that lack obvious answers.

The result is that until Congress or the appellate courts — and, ultimately, the Supreme Court — harmonize these wildly different approaches, a detainee's likelihood of prevailing in his habeas suit will be largely a function of which judge hears his case.

One can make a good argument for more or less restrictive detention rules — but there is no good argument for unclear rules. They create long delays and uncertainty for detainees. They also create uncertainty for forces in operational settings concerning what they can and cannot do, whom they can and cannot hold, and what actions will and will not survive subsequent scrutiny and review.

One way or another, Americans should know what patterns of behavior will support a detention in federal court; which, by contrast, will require a detainee's release; and what evidentiary and procedural rules will govern such proceedings. Should the government be able to detain someone when it proves that he traveled extensively on false documents, attended radical mosques where al Qaeda recruited people for jihad, was recruited at one and went to Afghanistan on the recruiter's dime specifically intending to join up, and stayed at a guest house there that acted as a gateway for terrorist training? The judge who heard this case thinks not, absent affirmative proof that the detainee later actually attended a training camp. Some of her colleagues would probably think otherwise. Do we really want them making this policy judgment?

Authors

Publication: The Washington Post

The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking

Rabea Benhalim, Robert M. Chesney and Benjamin Wittes — Fri, 22 Jan 2010 00:00:00 -0500

Executive Summary

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, 2010 deadline for Guantanamo’s closure with the base still holding nearly 200 detainees, the common-law process of litigating their habeas corpus lawsuits has emerged as the chief legislative mechanism for doing so.

It is hard to overstate the resulting significance of these cases. They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

This peculiar delegation of a major legislative project to the federal courts arose because of the Supreme Court’s 2008 decision that the courts have jurisdiction to hear Guantánamo habeas cases. While the justices insisted on a role for the courts, they expressly refused to define the contours of either the government’s detention authority or the procedures associated with the challenges it authorized. All of these questions they left to the lower courts to address in the first instance. Combined with the passivity of the political branches in the wake of the high court’s decision, this move placed an astonishing raft of difficult questions in the hands of the federal district court judges in Washington and the appellate judges who review their work.

Yet despite the scope of its mandate and the project’s manifest importance, the courts’ actual work product over the past year has received relatively little attention. While the press has kept a running scorecard of government and detainee wins and losses, it has devoted almost no attention to the rules the courts—in their capacity as default legislators—are writing for the military and for the nation as a whole. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.

Generally speaking, the law remains altogether unsettled. While in some areas judges have developed a strong consensus, in many other areas they have disagreed profoundly. They disagree about what the government needs to prove for a court to sign off on a detention, about what evidence it may employ in doing so, and about how deeply a court should probe material collected and processed for intelligence purposes, not litigation. Indeed, the judges of the federal District Court and D.C. Circuit Court of Appeals have, in the public opinions we reviewed, articulated differing approaches to or failed to authoritatively answer such elemental matters as:

The substantive scope of the government’s detention authority—that is, what sort of person falls within the category of individuals the government may lock up under its power to wage war against Al Qaeda and the Taliban. Does this class include only members of enemy forces or also their supporters? Can one even distinguish between the two? If the government is allowed to detain supporters, will any support qualify a person for detention or does it have to be substantial support? And even if the government can prove that a person has the requisite connection to the enemy, must it also prove that he is likely to commit a dangerous act of some description if released?
Whether and when a detainee can sever his relationship with enemy forces such that his detention is no longer a legal option. If a detainee once joined Al Qaeda, does he always count as Al Qaeda for legal purposes? Can he leave the group after some period of membership or association and thus no longer qualify for detention? Can he break with the group after capture by cooperating with authorities and thereby qualify no longer for continued detention? If a detainee can sever his relationship to the enemy, who has the burden of showing that he either did or didn’t do so? Does the detainee have to prove vitiation of the relationship or does the government have to prove its ongoing vitality?
What presumptions the courts should make regarding government evidence. Should the rough and tumble of warfare make them more forgiving or more skeptical of evidence whose provenance may be inexact? Should they grant either a presumption of authenticity or a presumption of accuracy to government evidence?
How to handle hearsay evidence that courts in normal cases would eschew. How should the courts handle intelligence reports whose sources the government may not identify? How should they handle statements by a detainee’s fellow prisoners in interrogations years ago when these witnesses may have long since left Guantánamo? And how should they handle interrogation statements by the detainees themselves?
How to handle detainee or witness statements alleged to have been extracted involuntarily or through abuse. Who bears the burden of proving that a statement either was or was not given voluntarily? What level of coercion suffices to render a statement unusable in these proceedings? And where coercion has taken place, how long does the taint of it last and under what circumstances does it lift?

The judges have struggled with other foundational questions as well, questions on which they have either found common ground or in which their disagreements remain latent: Who bears the burden of proof in these cases and by what standard of evidence? How should the courts treat “mosaics” of relatively weak data—mosaics which routinely inform intelligence analysis but are quite alien to federal court proceedings? And to what extent, if any, does the showing required of the government escalate over time?

So fundamentally do the judges disagree on the basic design elements of American detention law that their differences are almost certainly affecting the bottom-line outcomes in at least some instances. That is, some detainees freed by certain district judges would likely have had the lawfulness of their detentions affirmed had other judges—who have articulated different standards—heard their cases. And some detainees whose incarceration these other judges have approved would likely have had habeas writs granted had the first group of judges heard their cases.

The current degree of disagreement among the judges may be reduced over time, as several of the cases are currently on appeal to the U.S. Court of Appeals for the D.C. Circuit and could easily head from there to the Supreme Court. These appeals should collectively go a long way towards narrowing the range of possible answers to the questions with which the lower court judges are now struggling. Or at least they may do so eventually. For the moment, the appeals are in various stages of development, with only one decided so far.

In the meantime, the lack of clarity regarding such important matters as the scope of the government’s detention power and the circumstances in which an interrogation statement can be used to justify a detention presents problems from the perspectives of both the detainees and the government. Neither can be sure of the rules of the road in the ongoing litigation, and the prospect that allocation of a case to a particular judge may prove dispositive on the merits can cut in either direction. Because it remains unclear how far the courts’ jurisdiction extends, moreover, nobody knows at this stage precisely how many cases these rules will ultimately govern and where else in the world they will have a direct impact. More fundamentally, because the courts in these cases are defining not merely the rules for habeas review but also the substantive law of detention itself, they have implications far beyond the litigation context. The rules the judges craft could have profound implications for decisions in the field concerning whether to initially detain, or even target, a given person, whether to maintain a detention after an initial screening, whether to employ certain lawful but coercive interrogation methods, and so forth.

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