Brookings: Topics - Guantánamo

The President’s National Security Speech: A Quick and Dirty Reaction–Part 2 (Guantanamo)

Benjamin Wittes — Fri, 24 May 2013 09:28:00 -0400

President Obama made two important announcements about aspects of Guantanamo and its detainees in his speech today. These are worth flagging before I pivot and harp on the big problem with the President’s comments about the base and those held there.

The first important announcement came in this paragraph:

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. . . I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. . . . And we will insist that judicial review be available for every detainee.

The important statement is that the president is lifting his moratorium on transfers to Yemen. With this act, the President removes himself from the posture of being the principal obstacle to the effectuation of his own policy—the frustration of which he bitterly criticizes both in this speech and in other recent statements. After all, most of the detainees at Guantanamo are Yemeni; and the reason they could not go anywhere is only secondarily because of the transfer restrictions from the legislature. The primary reason was that Obama forbade it. Today’s move is therefore an important step towards the ability to remove from Guantanamo a group of detainees whose detentions may be lawful but who may not need to be there. That is a salutary thing.

The second important statement is more subtle–and more broken up in the speech. But I think Obama very carefully hinted that we may see the use of military commissions in future cases:

To repeat, as a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a Military Commission.

. . .

I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. . . . Where appropriate, we will bring terrorists to justice in our courts and military justice system.

It’s not quite a full-throated endorsement of military commissions, but it is a clear statement that the president regards their use as appropriate—and importantly, not just with respect to Guantanamo cases but prospectively as well. The latter passage, after all, occurs in the president’s comments about how to deal with legacy cases from the last administration. The former passage, however, is a description of Obama’s preference for how cases should be handled in the present and in the future. In other words, the president wants a military commission site in the United States for Guantanamo detainees but also for future detainees whom our forces may capture and, after interrogating, decide to try before a military commission. I can think of no reason for Obama to include military commissions in that first paragraph other than to signal a commitment at least to the possibility of their use down the line.

These two important items notwithstanding, Obama’s comments about Guantanamo were pretty lame.

Obama once again pontificated a fair bit about the need to close the site, and he situated the whole discussion in terms of his larger theme of bringing the war to an end:

During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists whenever we can.

The glaring exception to this time-tested approach is the detention center at Guantanamo Bay.

. . .

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future—ten years from now, or twenty years from now—when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

The trouble is that, as Wells pointed out earlier, Obama proposes nothing—nothing—concerning how to deal with those whom his own review task force deemed too dangerous to release but not plausible to bring to trial. The only thing he could say on that subject was that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”

And what basis for confidence could he possibly have on that score? It’s not as though these cases have never been reviewed before.

There is only one way to resolve this problem other than maintaining a group of people in custody whom one cannot try: That is not maintaing that group of people in custody. But is Obama really going to free Abu Zubayda–against whom I have not seen a criminal case materialize? What about Mohammed Qatani, the would-be 9/11 hijacker turned away from this country’s borders in Orlando with Mohammed Atta waiting for him on the other side of customs? What about the nearly 50 people whom the task force determined could not be tried but who pose real risks—and the additional people whom the task force believed could face trial but for whom that assessment proved optimistic? Until the president is willing to say that he means to set these people free, he should cut out the pieties about what sort of country we are—or would be if only a certain group of retrogrades would stop him from closing Guantanamo.

Authors

Benjamin Wittes

Image Source: © Bob Strong / Reuters

The President’s National Security Speech: A Quick and Dirty Reaction – Part 1

Benjamin Wittes — Thu, 23 May 2013 16:53:00 -0400

One week ago, a senior Pentagon official went before the Senate Armed Services Committee, along with the Pentagon’s top lawyers, and declared that the armed conflict with Al Qaeda and its associated forces under the Authorization for Use of Military Force (AUMF) would go on for another decade or two. He declared that the conflict geographically followed the enemy worldwide. The witnesses described the AUMF as giving the Pentagon adequate authority to target members of Al Qaeda and its associated forces.

If there was a unifying theme of President Obama’s speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration’s operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has—but also to make sure that it could continue to do so.

A great deal of the President’s speech was noise—noise in the form of broad, overarching accounts of his strategic vision, noise in the form of continuous veiled (or not-so-veiled) criticisms of his predecessor’s strategic vision and fidelity to American values, and noise in the form of apparent changes in policy that in actual fact change very little. But there are also a few important announcements contained in the speech. Over the next few posts, I will offer some initial thoughts, focused on trying to identify those aspects of the speech that seem to me either more than verbiage or as notable because they in fact reflect less than meets the eye.

The overarching theme of the speech definitely falls into the latter category. The President presents himself throughout the speech as bringing this war to a close: “[O]ur commitment to Constitutional principles has weathered every war, and every war has come to an end,” he said at the outset. And then, later on, he declares:

All these issues remind us that the choices we make about war can impact—in sometimes unintended ways—the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

In other words, while the Pentagon regards the AUMF as providing the authority it needs to confront the enemy for the next two decades, the president wants to work with Congress to get off the war footing and to secure the document’s narrowing, and ultimate repeal. It’s a striking contrast, whomever one thinks is right.

A striking contrast, that is, unless one does not quite take Obama at face value on this. After all, Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part. And Obama, needless to say, did not do anything like that. To the contrary, he promised that “we must finish the work of defeating al Qaeda and its associated forces” and while he used a lot of nice words about law enforcement and a lot of disparaging words about perpetual states of war, he also promised to continue targeting the enemy with lethal force under the AUMF. In other words, he promised—without quite saying it directly—to keep waging war:

Moreover, America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war—a war waged proportionally, in last resort, and in self-defense.

So count me a little confused: Are we heading for ten or twenty more years of war under the AUMF or are we on the road to peace and the primacy of peace-time authorities? Or are we, as I suspect, on a road to more use of peacetime authorities and less war under the AUMF, a different vocabulary for conflict, but ultimately long-term use of substantially the same authorities we have been using?

Authors

Benjamin Wittes

Publication: Lawfare

Image Source: © Larry Downing / Reuters

President Obama's Guantanamo Comments

Benjamin Wittes — Wed, 01 May 2013 09:37:00 -0400

I confess myself mystified by President Obama’s comments about Guantanamo this morning. Here is what the President said—with the parts I find confusing bolded:

QUESTION: Mr. President, as you’re probably aware, there’s a growing hunger strike at Guantanamo Bay among prisoners there. Is it any surprise, really, that they would prefer death, rather than have no end in sight to their confinement?

OBAMA: Well, it is not a surprise to me that we’ve got problems in Guantanamo, which is why when I was campaigning in 2007 and 2008 and when I was elected in 2008, I said we need to close Guantanamo.

I continue to believe that we’ve got to close Guantanamo. I think, well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us, in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

Now, Congress determined that they would not let us close it. And despite the fact that there are a number of the folks who are currently in Guantanamo, who the courts have said could be returned to their country of origin or potentially a third country, I’m gonna go back at this. I’ve asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively, and I’m gonna reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people.

And it’s not sustainable. I mean, the notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, and we’re having success defeating Al Qaida core, we’ve kept the pressure up on all these trans-national terrorist networks.

When we transfer detention authority in Afghanistan, the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and it needs to stop.

Now, it’s a hard case to make because, you know, I think for a lot of Americans the notion is “out of sight, out of mind.” And it’s easy to demagogue the issue. That’s what happened the first time this came up. I’m going to go back at it because I think it’s important.

QUESTION: Meanwhile, you continue to force-feed (inaudible).

No, I don’t — I don’t want these individuals to die. Obviously, the Pentagon is — is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this. Why are we doing this? I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing’s happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution; consistent with due process; consistent with rule of law; consistent with our traditions.

The — the individual who attempted to bomb Times Square, in prison serving a life sentence. Individual who tried to bomb planes in Detroit, in prison serving a life sentence. A Somali who was part of al-Shabaab who we captured, in prison.

So we can handle this.

And I understand that in the immediate aftermath of 9/11, with the traumas that had taken place, why for a lot of Americans the notion was somehow that we had to create a special facility like Guantanamo and we couldn’t handle this in a normal, conventional fashion. I understand that reaction. But we’re now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists. And this is a lingering, you know, problem that is not gonna get better. It’s gonna get worse. It’s gonna fester.

And so I’m gonna, as I said before, we’re — examine every option that we have administratively to try to deal with this issue, but ultimately we’re also gonna need some help from Congress. And I’m gonna ask some — some folks over there who, you know, care about fighting terrorism, but also care about who we are as a people to — to step up and help me on it.

The President’s comments are bewildering because his own policies give rise to the vast majority of the concerns about which he so earnestly delivered himself in these remarks.

Remember that Obama himself has imposed a moratorium on repatriating people to Yemen. And Obama himself has insisted that nearly 50 detainees cannot either be tried or transferred.

True, he would hold such people in a domestic facility, rather than at Guantanamo Bay. But so what? does the President not understand when he frets about “the notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity” that if Congress let him do exactly as he wished, he would still be doing exactly that—except that the number might not reach 100 and the location would not be at Guantanamo? Does he not understand his own policy proposals—to maintain a residual group of detainees indefinitely—when he worries that “When we transfer detention authority in Afghanistan, the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and it needs to stop”? Does he not understand when he intones that we are wiser now than we were after 9/11 and no longer need a site like Guantanamo to hold non-criminal terrorist detainees that he is proposing to build a new one?

Pardon me, but I don’t get it.

This was reposted from the Lawfare Blog »

Authors

Benjamin Wittes

Publication: Lawfare

Strangeness at Guantanamo

Paul R. Pillar — Tue, 29 Jan 2013 00:00:00 -0500

Editor's note: This article was originally published by The National Interest.

During a hearing Monday to consider pre-trial motions before the military tribunal at Guantanamo that is handling the case of Khalid Sheik Mohammed and four other defendants charged with perpetrating the 9/11 attacks, the audio and video feeds that run from the courtroom to media rooms and are the only way for the outside world to follow the proceedings were mysteriously interrupted for several minutes. No one who is saying anything to the outside world seems to know the reason for the interruption. The colonel who is the presiding judge seemed not to know on Monday. A member of the prosecution team said she does know but, with the cameras and microphones back on, would not explain. The following day the judge seemed satisfied with whatever explanation he apparently got, but he wasn't talking either.

The mysterious electronic gap is a fitting sample of much that is strange about the detention facility at Guantanamo and what goes on there. Part of the strangeness is about Guantanamo itself; other parts are about things that are centered at, or symbolized by Guantanamo, including the basis for indefinite detention of people suspected of involvement in terrorism and the military tribunal system used to try some of them.

What is odd about the facility itself is its anomalous legal status, being on a U.S. military base with a long-term lease from Cuba. Decision-makers in the George W. Bush administration selected the place to establish a detention center that would be as much as possible out of the reach of anyone's law. The Supreme Court has frustrated whatever hope there may have been to keep it entirely outside the reach of the law, but the anomaly of the place continues to be a basis for the legal uncertainty of much of what goes on there.

One of the latest of the many legal uncertainties about the military tribunal system concerns whether it can be used to try defendants for anything other than crimes of war. There is disagreement about whether prosecutors can bring to a tribunal conspiracy charges of the sort that can certainly be brought in a civilian court. The Department of Justice says they can; the military judge in charge of the tribunals says they can't (while adding that this very disagreement demonstrates the tribunals' independence and by implication their fairness). Besides the uncertainty, there is an irony given how members of Congress who have forced the handling of terrorism cases out of the civilian courts and into military tribunals may have thought that this tough handling of the subject as “war” would mean greater power and freedom to punish terrorists without prosecutors' jobs being complicated by all the rules of evidence and whatnot that civilian courts have. With regard to something like the use of conspiracy charges, the move to military tribunals means less, not more, flexibility in what prosecutors can do.

Also in the news this week is the administration's announcement that the State Department official who has been charged with negotiating new custody arrangements for Guantanamo prisoners is being reassigned without being replaced. This move is being interpreted as a tacit admission by the Obama administration that it will not realize its goal of closing the detention facility at Guantanamo, although officially the administration says that is still the goal. Failure to meet that goal is partly due to facing the reality of each detainee's case being different and many of them being complicated. The failure is in large part due again to Congress, which has restricted movement of detainees both to the United States and to some of the key foreign countries. Thus another irony: the actions of those who think in terms of a “war on terror” with a beginning and an end have laid the basis for a supposedly temporary detention system that will have no end.

President Obama recently appointed former prosecutor Mary Jo White to head the Securities and Exchange Commission. As U.S. attorney for the Southern District of New York, White's office successfully prosecuted several of the highest profile terrorism cases—the experience that most refutes some of the chief arguments made in favor of reliance on the military tribunal system. Although at the SEC White will be a regulator rather than a prosecutor, the administration's evident hope and message in making this appointment is that Wall Street crooks will face effective punishment. Maybe the United States will handle the cases of such crooks with greater rationality, consistency and effectiveness than it seems to be handling the cases of suspected terrorists at Guantanamo.

Authors

Paul R. Pillar

Publication: The National Interest

Image Source: © Bob Strong / Reuters

Two Parties, One Policy: Washington's New Consensus on Terrorism

Ritika Singh and Benjamin Wittes — Fri, 14 Sep 2012 10:00:00 -0400

Political parties in the United States, like a spatting couple in a bad marriage, have been fighting over the law of counterterrorism for more than a decade. And like the spatting couple, they have developed an almost rote script for their fight. The script has a logic of its own. It is a comfortable one for both spouses—and the fight is soothing in its own way. Republicans and Democrats alike wrap up some portion of their party’s identity and self-image in the conflict over national-security policy. The fight gives each side the impression—and the confidence—that the other endangers America. And it gives each side something to tell voters about why they should vote one way rather than another.

You already know the script: Democrats see themselves as the rule-of-law party, concerned to restore America’s moral standing in the eyes of the world and to curtail the excesses of the Bush administration. In their rhetorical world, they defend human rights and compliance with international law from the dangerous unilateralists of the right. While the other side is full of cowboys, Democrats work through multilateral institutions. They believe in federal courts. They don’t shred the Constitution. Conversely, Republicans see themselves as the party of security, committed to the law-of-war paradigm and to muscular uses of American power in pursuit of it. In their rhetorical world, trying terrorists in federal courts—even showing basic solicitude for detainees—makes America less safe and reveals a weak-kneed willingness to return to a pre-9/11 law-enforcement mentality. They believe in interrogating the enemy. They don’t do habeas corpus.

The script, at this point, is largely nonsense, masking a remarkable common ground between the parties on the legal and policy issues surrounding terrorism. Like the couple that bickers over trivial matters while sharing attitudes on nearly all the important issues facing their family, the two major political parties have converged on the substance of many of the key questions while continuing to speak in the public domain as though a great gulf separates them.

This is not to say there are no differences between the parties on these issues. There are. But the differences have become subtle—even as the rhetoric has not. Issues that deeply divided the country as recently as four years ago have become matters of consensus, if not in the country at large, certainly in those parts of both political parties that will control the federal government under either Barack Obama or Mitt Romney.

Read the full piece at Commonweal Magazine »

Authors

Ritika Singh
Benjamin Wittes

Publication: Commonweal

Image Source: © Jason Reed / Reuters

Campaign 2012: War on Terrorism

Mon, 10 Sep 2012 15:30:00 -0400

Event Information

September 10, 2012
3:30 PM - 5:00 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue, N.W.
Washington, DC 20036

This event was broadcast live on C-SPAN3 and online at C-SPAN.org.

With both presidential campaigns focused almost exclusively on the economy and in the absence of a major attack on the U.S. homeland in recent years, national security has taken a back seat in this year’s presidential campaign. However, the administration and Congress remain sharply at odds over controversial national security policies such as the closure of the Guantanamo Bay detention facility. What kinds of counterterrorism policies will effectively secure the safety of the United States and the world?

On September 10th, the Campaign 2012 project at Brookings held a discussion on terrorism, the ninth in a series of forums that identify and address the 12 most critical issues facing the next president. White House Reporter Josh Gerstein of POLITICO moderated a panel discussion with Brookings experts Benjamin Wittes, Stephen Grand and Hafez Ghanem, who presented recommendations to the next president.

Participants can follow the conversation on Twitter using hashtag #BITerrorism.

Download papers from the event:

Keeping on Offense: The Next President Should Keep After al Qaeda but Mend Relations with Congress on Terrorism, by Daniel L. Byman and Benjamin Wittes
An Opening for a New Narrative in U.S.-Muslim World Relations, by Stephen R. Grand
What Focusing on Drones and Detention Misses, by Kevin Watkins and Rebecca Winthrop

Campaign 2012: Twelve Independent Ideas for Improving American Public Policy is an indispensable guide to the key questions facing White House hopefuls in 2012.

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Audio

Campaign 2012: War on Terrorism

Transcript

Uncorrected Transcript (.pdf)

Event Materials

Counterterrorism a Strong Suit for Obama in Reelection Bid?

Daniel L. Byman and Benjamin Wittes — Mon, 06 Aug 2012 00:00:00 -0400

Follow @BICampaign2012
A soft economy has cemented the focus of the 2012 presidential election on economic issues, with little attention paid to national security, a topic often considered a Republican strength. But with Osama bin Laden dead and no new terror attacks during his term, President Barack Obama isn’t seen as weak on the war on terror. Dan Byman, a senior fellow with the Saban Center for Middle East Policy, and Campaign 2012 Project Director Benjamin Wittes break down Obama's counterterrorism record in his first term, and how it will be characterized in the election.

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Keeping on Offense: The Next President Should Keep After al Qaeda but Mend Relations with Congress on Terrorism

Daniel L. Byman and Benjamin Wittes — Fri, 20 Apr 2012 15:50:00 -0400

Follow @BICampaign2012
Editor's Note: The following is a Campaign 2012 policy brief by Benjamin Wittes and Daniel Byman proposing ideas for the next president on America’s counterterrorism efforts. Stephen Grand prepared a response arguing that the next president must seize the Arab Spring as a historic opportunity to prove to the region that the United States is a meaningful and trustworthy partner. Rebecca Winthrop and Kevin Watkins also prepared a response arguing that the United States must put poverty, including strategies for positive youth development, at the center of the nation’s wider national security agenda.

At the dawn of the Obama administration, counterterrorism seemed to be one of the new president’s biggest weaknesses. Unlike the preceding administration, which repeatedly emphasized that it was keeping America safe from a post-September 11 homeland attack, Barack Obama promised during the campaign to “restore the rule of law” and “close Guantánamo,” in other words, to smooth off the hard edges of the War on Terror. Within months of taking office, Obama found his various moves in this direction thwarted by opponents who painted the new president as weak. Two near-miss terrorist attacks domestically—one on an airplane, the other in Times Square—accentuated the political problem. By the time the president had completed his first year in office, counterterrorism ranked among his political vulnerabilities.

What began as weakness, however, has over time morphed into strength. As a result, Obama goes into the 2012 campaign enjoying far higher public confidence in his pursuit of terrorists than on other matters. He has developed a strong operational record both in overseas counterterrorism and against domestic jihadists. He has made bold decisions that have enraged his political base. He has also been lucky. And barring a successful strike on the homeland in the coming months, he will have turned counterterrorism from a sword wielded against him to a sword in his own electoral hand.

Unfortunately, Obama’s operational successes have not been matched by comparable success in establishing a durable legal framework for counterterrorism activities. Despite his victories against al Qaeda overseas, the president finds his position on counterterrorism in the eyes of Congress growing steadily worse. Some of this trouble reflects frankly unreasonable policy constraints that Congress has attempted to slap on executive operational flexibility. Some of it, however, reflects poor and timid leadership on the part of Obama, who has steadfastly refused to invest his political prestige and capital in the legislative politics of counterterrorism. As a result, the next president will face a significantly improved strategic climate with respect to America’s principal terrorist enemy but also a set of thorny policy disputes with the legislature—which seems bent on pushing approaches that no president, Republican or Democrat, is likely to embrace.

The next presidential term should not, and probably will not, see a radical departure from the current framework of counterterrorism policy. Whether Obama or a Republican is at the helm, the United States must continue with its robust domestic law enforcement alongside vigorous covert and open targeting of al Qaeda–affiliated groups in Pakistan, Yemen, and elsewhere. It must also maintain and expand work with cooperating intelligence partners in other nations.

But important changes should be entertained as well. In particular, the next president should talk more publicly about the legal and policy parameters of the fight; settle relations with Congress on counterterrorism matters, and establish a set of understandings with the legislature regarding available counterterrorism tools; and end the standoff with the legislature over whether to close Guantánamo, accepting the fact that noncriminal detention is not going to end and that the naval base is as a good a site as any at which to conduct it under appropriate judicial supervision.

The Obama Record

Obama has made an undeniably strong impact in operational counterterrorism. His presidency has successfully targeted major al Qaeda leaders abroad—most famously, the previously elusive Osama bin Laden. The killing of bin Laden was a significant blow to al Qaeda. Beyond bin Laden’s operational role—which terrorism expert Bruce Hoffman describes as “active . . . at every level of Al Qaeda operations: from planning to targeting and from networking to propaganda”—his survival was a form of successful defiance that his followers attributed to God’s protection. The successful U.S. attack diminished the aura of divine protection, not only for bin Laden, but also for his cause. His successor, Ayman al-Zawahiri, may be an effective operator, but he has far less star power than bin Laden did—and thus less ability to inspire. Al Qaeda will find it hard to recruit and raise money without bin Laden to lead its cause.

In the past few years the organization has also suffered steady losses from U.S. drone strikes. The drone campaign began under President George W. Bush and increased in intensity near the end of Bush’s time in office. Under Obama, however, it went on steroids. The Long War Journal reports that the United States has killed hundreds of Taliban and al Qaeda figures, along with dozens of civilians. These individuals have been far less prominent than bin Laden, but many had skills that are in short supply and difficult to replace. Al Qaeda struggles to find seasoned and able new leaders, and even when successful, it takes time to integrate them into the organization. Even more important, though harder to see, al Qaeda lieutenants must limit their communications to prevent the United States from eavesdropping and determining their location for airstrikes. They also reduce their circle of associates to avoid spies and escape public exposure—but then become far less effective as leaders as a result. This makes it harder, though not impossible, for them to pull off sophisticated attacks like September 11, which require long-term planning and management.

With large numbers of their lieutenants eliminated, terrorist groups are often reduced to menacing bumblers. There may still be thousands who hate the United States and want to take up arms, but without bomb-makers, passport-forgers, and leaders to direct their actions, they are easier to disrupt and more of a danger to themselves than to their enemies. Some observers both inside and outside of government now believe that the core of al Qaeda is on the point of collapse.

To be sure, regional affiliate groups and others that work closely with al Qaeda—al Qaeda in the Arabian Peninsula (AQAP) and the Somali al Shabab, in particular—have grown in importance. These groups are dangerous not only because of their hostility to U.S. allies in their theaters of operation, but also because, in AQAP’s case in particular, they have attempted sophisticated attacks on the U.S. homeland. The Shabab poses additional concerns: several dozen Americans of Somali origin have gone to Somalia to fight for the organization and could prove to be valuable recruits for jihadist organizations wanting to conduct a terrorist attack on the U.S. homeland.

Nonetheless, American actions have taken a serious toll on affiliate groups too—and thus have materially improved American domestic safety. Most significant, the drone strike that killed Anwar al-Awlaki, the American-born cleric who helped lead AQAP’s activities from its haven in Yemen, did far more than eliminate yet another senior terrorist leader. Awlaki, more than other al Qaeda leaders, posed an unusual and multifaceted danger to the U.S. homeland. From his perch in Yemen, he and his fellow AQAP members had the operational freedom to plan sophisticated attacks on the United States. And unlike other affiliates, which tended to focus on their own localities and regions, AQAP repeatedly sought to hit the United States directly. Moreover, Awlaki tried to inspire Muslims in the United States and the West to take up arms. As an American, he was familiar with U.S. culture and values and knew how to use them to al Qaeda’s advantage far better than other figures.

The Obama administration deserves credit for these accomplishments, but it should be remembered that they enjoyed broad bipartisan support and probably would have occurred regardless of who was in the Oval Office. Much of the intelligence and military support behind the more aggressive campaign took shape near the end of the Bush administration, establishing a foundation the Obama administration was able to build on. Had a Republican been in office, drones would likewise have been used to target al Qaeda without the assistance of what is, at best, a highly unreliable ally in Islamabad.

On the domestic front, the Bush administration’s success in preventing significant attacks on the homeland after 9/11 came to a tragic end when Major Nidal Malik Hasan shot thirteen Americans at the U.S. military post in Fort Hood, Texas. Furthermore, the current administration’s record in protecting the homeland would look far less attractive today had two major terrorist operations—the Times Square bombing and the Christmas Day 2009 effort to bring down a commercial airliner—not failed in large part as a consequence of good luck. At the same time, the Obama administration has seen significant successes too, with authorities breaking up a number of major plots. Good intelligence cooperation helped foil a 2010 AQAP attempt to bomb two cargo planes headed for the United States. Also in 2010, the Obama administration managed to uncover the planned bombing of several New York targets by Najibullah Zazi, an Afghan by birth but a legal resident of the United States. Unlike the many unskilled attackers arrested in the past, Zazi admitted he was trained in Pakistan and instructed to carry out a suicide bombing. In the past few years, the Federal Bureau of Investigation (FBI) has become so adept at breaking up incipient terrorist cells—and has done so at such early stages of planning—that it has become difficult to evaluate the seriousness of many of the alleged plots, whose participants often manage to do little more than conspire with undercover agents posing as terrorists. Nonetheless, the large and growing number of domestic arrests and prosecutions suggests at least some problem of domestic radicalization, despite law enforcement’s high degree of effectiveness.

In sharp contrast to the Obama administration’s operational success, its efforts to develop an agreed-upon legal framework for counterterrorism have by and large failed. Although early on it worked with Congress to rewrite aspects of the Military Commissions Act, the president’s promise to close the detention facility at Guantánamo Bay has foundered on congressional opposition. Friction with the legislature has persisted over transfers from Guantánamo, the proper forum for trying terrorist suspects, the use of the domestic criminal justice system as a counterterrorism tool, the availability of alternative detention facilities in the United States, and whether the 2001 congressional Authorization for Use of Military Force (AUMF) needs updating. President Obama has failed to present Congress with an affirmative agenda regarding counterterrorism legal issues and thus has lost control of the legislative debate. As a result, he has found himself in repeated standoffs with Congress, which in 2011 mounted a serious effort to compel the use of military detention for terrorist suspects, even for those arrested domestically, and to require that trials take place in military commissions.

This turn of events is quite surprising, for initially Obama seemed eager to place American counterterrorism authorities on a more solid legal footing by enshrining them in statutory law and thereby both constraining and legitimizing their use. In a major address at the National Archives in May 2009, he noted of detention authorities:

Our goal is to construct a legitimate legal framework for the remaining Guantánamo detainees that cannot be transferred. . . . If and when we determine that the United States must hold individuals to keep them from carrying out an act of war . . . my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Within a few months, however, the administration had dropped that particular ball, making clear that it did not mean to seek legislation after all. When the administration finally announced the review process for Guantánamo detainees, it acted by means of an executive order, and until Congress forced the administration’s hand in the 2012 National Defense Authorization Act (NDAA), the Obama team specifically eschewed public requests from members of Congress to proceed legislatively.

The Republican Critique

The Republican candidates for president expressed a somewhat schizophrenic opposition to Obama’s counterterrorism record. One of the mainstays of Republican campaigning is accusing Democrats of not being tough enough on America’s enemies, but that’s an awkward line of attack against a president who has actually ramped up drone strikes, increased the U.S. troop presence in Afghanistan, sent special forces into Pakistan to kill bin Laden, and targeted an American citizen with a drone. As a result, the candidates combined praise for Obama’s operational successes with disdain for his allegedly soft counterterrorism policies in another.

Ron Paul aside, the GOP candidates all made clear that they had no problem with Obama’s aggressive targeting of the enemy. In one debate, Texas governor Rick Perry said one thing he agreed with was that Obama “maintained the chase and we took out a very bad man in the form of bin Laden.” During another debate, Newt Gingrich, Michelle Bachmann, and Mitt Romney all spoke up on behalf of the al-Awlaki operation. While the president’s targeted killing raises ire in his own political party, it induces no similar anxiety among politicians on the other side of the aisle. Indeed, the president’s operational successes have significantly blunted the power and simplicity of the Republican case against his counterterrorism record.

The Republican candidates instead criticized several of Obama’s policy judgments that in their view signal a retreat from the war paradigm for confronting the enemy. In particular, they faulted Obama for terminating the CIA’s High-Value Detainee program and the enhanced interrogation techniques authorized within it. Mitt Romney, Rick Perry, Newt Gingrich, and Herman Cain all promised to authorize techniques that exceed those permitted by the Army Field Manual. Some explicitly promised to permit waterboarding, which the CIA used on three detainees but was then discontinued by the Bush administration. In addition, the major Republican candidates promised to keep Guantánamo Bay up and running and complained of Obama’s continued—if lackluster—commitment to shuttering it. Perhaps most important, all the candidates attacked Obama’s willingness to use the domestic criminal justice system to handle terrorist suspects, arguing that terrorists don’t deserve the constitutional rights the system affords.

Little, if any, evidence supports the notion that U.S. interrogations have been hampered by rules against waterboarding, and the Republican hostility to federal court terrorist trials flies in the face of considerable evidence indicating that the federal courts—at least for now—offer the most effective means of neutralizing certain types of terror suspects. Indeed, the Bush administration used multiple trial venues, including civilian courts, for terrorism cases. That said, on some matters, the GOP critique has merit.

In the case of Guantánamo, for example, the Republican candidates put their collective finger on a real issue: Obama has promised to close the facility, but he has not identified an alternative site for the long-term detention of law-of-war detainees that Congress will let him use. Nor has he effectively countered congressional opposition to his position. As the United States disengages from the Afghanistan conflict, it will not be able to count on the continued use of the Bagram air base for detentions; indeed, the detention facility at Bagram is being transferred to Afghan control and is already off limits for non-Afghans captured out of the theater of war in the future. Although the GOP commitment to Guantánamo may smack of posturing over a site that has attained an odd symbolic importance, there is a real concern that if plans to transfer such detainees to their home countries founder, Obama’s refusal to bring new detainees to Guantánamo will leave a gap in U.S. capabilities.

In addition, as Congress urged last year, Mitt Romney is pushing for the AUMF to be updated—an issue of genuine substance and importance. The AUMF, Romney accurately says:

is only a few sentences long, its language is quite general, and it has not been updated since its enactment. While the statute clearly authorizes force against al Qaeda and the Taliban, it does not directly address what other groups might also be covered. Recent administrations have interpreted the AUMF expansively to include those who substantially support forces associated with al Qaeda and the Taliban, but as more time passes, the connections between those two groups and the terror threats we face will become more and more attenuated. These new terror groups—like al-Shabaab in Somalia—may share al Qaeda’s ideological objectives but lack close operational ties with the larger network.

The Obama administration has looked askance at efforts to modernize the AUMF, although the NDAA did enshrine its detention authority in law, but Romney’s point has considerable force. In fact, it identifies the administration’s chief shortcoming in this area: its failure to seriously engage Congress over the legal framework for tough counterterrorism actions.

Counterterrorism Policy in the Next Presidential Term

The next president—whether that is Obama or one of his Republican challengers—should not, and likely will not, alter the twin strategic pillars of American counterterrorism policy put in place in recent years: robust law enforcement efforts domestically coupled with vigorous covert and military targeting of al Qaeda’s core and affiliated groups in Pakistan, Yemen, and elsewhere. U.S. counterterrorism policy must center on fighting enemy groups in Pakistan and Yemen despite the death of bin Laden and al-Awlaki. These two countries provide terrorist groups like al Qaeda with the secure havens they need to maintain their strength and remain a deadly danger. Because both countries pose this danger and are also fitful counterterrorism partners, the United States must continue an aggressive campaign—using both drones and special forces—of targeting the enemy with lethal force. Conservatives may complain about using law enforcement to handle terrorism cases, but no plausible alternative to the criminal justice system exists for the volume of serious cases the FBI and federal prosecutors are overseeing in the homeland. For all the noise on the political Left about abandoning the war and covert action paradigms and on the political Right about the exclusivity of the military detention and trial models, no prospect for either exists—no matter who is president.

At the same time, many U.S. counterterrorism successes occur daily, and quietly, in cooperation with allied intelligence and law enforcement services, which arrest and detain suspected terrorists around the globe. The United States must make every effort to maintain and even expand such efforts: they usually incur little cost economically and diplomatically, yet are highly effective. Such cooperation often means working under tension with unsavory and undemocratic partners in places like Jordan or Bahrain, where the United States might be contributing to the repressive capacity of a regime in the name of counterterrorism even as that regime moves to curtail democratization, at times brutally, in a way the United States opposes. Should the forces of democracy survive and take over, the United States will have to forge new relationships with the often-suspicious replacements. None of this will change whether a Republican or a Democrat wins the next election.

For that very reason, the next administration must make the parameters of the American consensus on the parameters of the fight against terrorism clearer to the public. For a start, it might continue addressing the following questions: Under what conditions will the United States kill terrorist leaders? How many civilian deaths are acceptable when it does? What sort of intelligence evidence is necessary before it acts? The United States has taken important steps to lay out these criteria without revealing sensitive intelligence information or methods and in so doing improve the public and elite debate on counterterrorism and thus make overall policy more robust. The next administration should do more still in this regard.

Above all, the next administration must settle relations with Congress on counterterrorism matters, to establish a set of working understandings with the legislature regarding the legitimacy of counterterrorism options that the executive needs to keep on the table. Some of what Congress has wished to do—reauthorize and update the AUMF to describe the war America is now fighting, rather than the war it set out to fight more than a decade ago—is quite reasonable in principle, though the specific proposals may require considerable work. Some actions of Congress have been frankly destructive, particularly its efforts to impede the use of the domestic criminal justice system, mandate military detention, and encumber the transfer of detainees from military custody. The next president will have to engage more constructively with the legislature than Obama has to date, working with members to improve and polish ideas with promise and stop proposals that restrict executive flexibility in a conflict that requires flexibility.

One key to building such a relationship with the legislature may be to take a new approach to the less-than-important subject of what to do about the detention facility at Guantánamo Bay. Guantánamo has played an outsized role in the Obama administration’s paralysis in connection with the law on terrorism. Obama has continued to mouth his commitment to closing Guantánamo but has not been willing to exercise the powers of the presidency to prevent his policy from being stymied. His continuing emphasis on closing the facility also feeds the perception among conservatives that he is opposed to using military authorities to neutralize terrorists.

The next president should approach Guantánamo in a very different way from that of either the Bush or the Obama administration. For Guantánamo today is not the Guantánamo of the early Bush administration—a detention site chosen for lying beyond the reach of the U.S. courts. It is now a unique detention site for almost the opposite reason. Alone among facilities used by the military to detain enemy forces in the war on terror, detentions at Guantánamo are supervised by the federal courts in probing habeas corpus cases. Detainees there, unlike those at any other detention facility, have access to lawyers. Their cases are followed closely by the press, and many hundreds of journalists have been to Guantánamo. What is more, Obama’s executive order—and now the NDAA—have created a significant new review process for those detainees who have lost their habeas cases. In other words, while everyone—including Obama—was calling for Guantánamo’s closure, it evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the United States has used.

Instead of fecklessly continuing to argue for the closure of Guantánamo, the president should treat it not as a symbol of excess, lawlessness, or the evasion of judicial review, but as a site of detention under the rule of law. Huge strides have been made in this direction under both the Bush and Obama administrations. The next president should actually seek to expand the facility by bringing to Guantánamo and subjecting to its processes all counterterrorism detainees captured in the future or held currently anywhere in the world today that are to be kept in military detention for a protracted period of time. This will ensure that all detainees whom the United States wishes to hold because of something more than a role in local theater operations receive the benefit of the due process norms that have been established at Guantánamo. This approach will solve another problem as well: that of where to detain future captives once the military no longer has access to facilities in Afghanistan. And it will greatly strengthen the president’s hand in seeking from Congress flexibility in handling detainees both at the site and elsewhere.

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Keeping on Offense: The Next President Should Keep After al Qaeda but Mend Relations with Congress on Terrorism

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Image Source: © Feisal Omar / Reuters

How the Next 10 Years of Guantanamo Should Look

Benjamin Wittes — Wed, 11 Jan 2012 00:00:00 -0500

This week marks the 10th anniversary of the opening of the U.S. detention facility at Guantanamo Bay, Cuba, and the hand-wringing is in high gear. There have been op-eds by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site and tear-stained statements by human rights groups.

In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.

Make no mistake: There will be another 10 years of Guantanamo. (Even if Guantanamo itself miraculously closes, we’ll have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against non-state actors, our forces are likely to capture more of such people, and they will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

America needs principles for Guantanamo’s next decade — principles that might form the basis for a national policy that commands support from a wide swath of our political system. Here are three suggestions toward that end.

First, the president must face the fact that the effort to close Guantanamo has failed. It is clear that no conceivably electable presidential administration — including the Obama administration — is going to abandon the military detention of terror suspects. It is also clear that Congress has an irrationally strong preference for doing this detention at Guantanamo, that legislators will frustrate any efforts by the administration to create or use alternative sites, and that the executive branch will not exert the political effort necessary to stare Congress down on this point.

This is actually a rational calculation on Obama’s part. The marginal political gain he would net from closing Guantanamo and building some other site for the same purpose — a site that would quickly acquire similar infamy — just isn’t great enough to justify the intense political energy it would require to achieve Guantanamo’s closure. What’s more, much of the president’s political base — not being stupid — has figured out that closure doesn’t mean all that much if detainees are moved rather than freed. So why not stop pretending that Guantanamo’s closure is still meaningfully part of the plan?

Second, detention at Guantanamo has become rich with due process, and we should embrace this model for a wider array of long-term counterterrorism detentions. Detainees at Guantanamo have access to habeas corpus. They have access to lawyers. And those who lose their cases have a robust review process that will reexamine their cases regularly. Ironically, while Guantanamo remains controversial, U.S. detainees elsewhere in the world have much less process available to them. Instead of clamoring for a useless closure that isn’t going to happen anyway, we should think about which detainees, including those held in theater in Afghanistan and those we have sometimes held on ships, we might prefer to bring to Guantanamo and hold under its rules. These guidelines have actually served the executive branch well by creating legitimacy and judicial sign-off for detentions that had once been executive-only affairs.

Third, non-criminal detention is a fluid business that requires flexibility. Public myths aside, detention at Guantanamo has not usually meant detention forever. Opportunities to press charges against detainees will sometimes arise. Opportunities to transfer them abroad come up more often. We learn about errors, and new information has often triggered releases. Yet just as the administration has avoided acknowledging Guantanamo’s ongoing role, many in Congress from both parties have been in denial about the importance of transfers from the facility. Congress has made transfers terribly difficult and thereby all but guaranteed that the administration will not use the base for future cases. This is wrongheaded. Guantanamo is a detention facility, not a lobster trap, and a detention facility where detentions can’t end helps nobody. The ability to free detainees must be unencumbered for any detention policy to work well.

Put these three principles together and you get something — process-rich, flexible detention at Guantanamo Bay — that looks like a detention policy for the coming decade. Working toward such a policy, not endlessly picking at the scab of the past 10 years, should be the focus of today’s discussion.

Authors

Benjamin Wittes

Publication: The Washington Post

Image Source: © Reuters Photographer / 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

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@ Brookings Podcast: Are Harsh Interrogation Tactics Justified in the War on Terror?

Benjamin Wittes — Fri, 13 May 2011 14:49:00 -0400

While some argue that harsh interrogation techniques helped the U.S. find Osama Bin Laden, expert Benjamin Wittes notes that it’s impossible to say whether the same information could have been extracted using conventional military interrogation methods. Wittes says we cannot duck the question of whether such techniques as water boarding and sleep deprivation produce sound intelligence—but we must also consider the legal and moral aspects of such brutal interrogations. Wittes is co-author of a new report, "The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking."

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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

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Assessing the Risk of Guantánamo Detainees

Benjamin Wittes — Mon, 25 Apr 2011 15:35:00 -0400

The press has discovered that it is shocked that America is releasing dangerous people from Guantánamo Bay. The New York Times reports, based on a new cache of Wikileaks documents, that Guantánamo detainees classified as low risk had turned out to be major terrorists, and that detainees classified as “high risk” turned out to be nothings. NPR reporter Tom Gjelten declares this morning that,

What we’ve learned that’s most striking is about how the Guantánamo commanders ranked the detainees by how dangerous they allegedly were. We’ve learned for the first time that the detainees were officially sorted by how likely they were to pose a threat to the United States if released. That was the standard. . . . We now see that more than a third of the detainees who have passed through Guantánamo since it opened are officially assessed as likely to pose a threat to the U.S. But many in that high-risk group were shipped out anyway. . . . At least 160 and maybe more. We’re being conservative here.

Let’s be clear: None of this is new. It isn’t new that some detainees have convinced the military that they posed little risk and then went on to do bad things. And it isn’t new that America has sent home lots of people whom it doesn’t regard as innocuous either. The breathless reporting of such facts is mystifying and damaging.

Nobody should be surprised to learn that we have released dangerous people from Guantánamo. Even to call this an open secret is to make more of a secret of it than there ever was. It was simply an open fact. There were, of course, erroneous detentions, but no serious person believes that there have been anything like as many erroneous detentions as there have been releases. Nor was either the Bush or Obama administration claiming ever that all of the people it released posed no threat. The press has spent a great deal of time and energy portraying the Guantánamo population as composed mostly of sheep-herders and other innocents. But that is never the way the population looked to intelligence analysts. Decisions about releasing people were always about weighing uncertain risks and uncertain benefits associated with continued detention. We cannot as a political culture cry out in protest when detainees are held and when they are freed.

What’s more, risk is contextual. It will not do to note that a given detainee was once classified as “high risk” and to conclude from that fact that it was an error to release him. A great many people pose risks in some circumstances but not in others. A person might, for example, pose a great risk if left unmonitored but pose a very manageable one if his home country is willing to take responsibility for keeping an eye on him. Saudis whom we would not want anywhere near airplanes with box-cutters in the United States might seem like eligible candidates for release into a Saudi reintegration program that has shown promising results. Afghan detainees who on their own terms pose serious threats might pose minimal threats to the extent that one can, say, build Afghan institutions and prisons capable of handling them. By contrast, even relatively innocuous Yemenis might seem too threatening to let go if one is talking about releasing them into ungoverned territories with active terrorist elements.

And risk assessments also change over time. As one learns more about detainees, some who seem like high-risk individuals will come to seem less threatening–and vice versa.

If we insist on irrationally vacillating between ignorant braying for the freedom of dangerous people and expressions of shock at the internal assessments of their actual danger, we will do no service to either liberty or security. We will paralyze ourselves. The right approach is to build systems that reflect an appreciation of the uncertainty inherent in this sort of exercise—and then maturely to live with the results those institutions generate. We need to accept that we will detain people whose detentions we will come to regret, and we will release people whose releases we will come to regret. We should not pretend when either happens that certainty was possible.

Authors

Benjamin Wittes

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Military Tribunals for Guantánamo Detainees

Benjamin Wittes — Tue, 05 Apr 2011 16:39:00 -0400

The Obama administration has abandoned efforts to put Khalid Sheikh Mohammed, the alleged 9/11 mastermind, and his co-conspirators on trial in civilian courts, saying the suspects will be tried in military tribunals at the Guantánamo Bay prison, which remains in operation despite the president’s vow to close its doors. Benjamin Wittes observes that politics led to the policy reversal, but adds that although it was a tough decision, it was the right one.

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Military Tribunals for Guantánamo Detainees

Can President Obama and Congressional Republicans Reach a Deal on Guantánamo?

Benjamin Wittes — Thu, 10 Mar 2011 11:17:00 -0500

Is there a deal to be done between President Obama and congressional Republicans on Guantánamo?

On the surface, the prospects don’t look good. Congress has slapped a series of impediments on detainee transfers from the base. In issuing his Executive Order to create a review process for Guantánamo detainees this week, Obama attempted to circumvent the legislature on a matter on which it has a keen policy interest. And House Republicans have now responded by introducing legislation that would impose serious new constraints on Obama’s maneuverability with respect to detainee policy more generally. On the face of things, the prospects for consensus look pretty bleak. We seem, rather, to be heading for confrontation.

Yet the picture may be less bleak than it seems. There are two reasons for very cautious optimism. The first is that both the administration and congressional Republicans are committed to making policy in this area, and that dual commitment will force them to negotiate. Neither side can afford to ignore the other. Both can frustrate the other’s objectives, and that may force a measure of accommodation.

The second reason for optimism is that for the first time, nearly everyone is talking about a common policy objective: A legal framework for detention policy. To be sure, the administration and congressional Republicans are talking about very different frameworks. Broadly speaking, the administration wants flexibility to detain members of enemy force but also wants flexibility to try them in federal court and flexibility to transfer them overseas when, in its judgment, detention is no longer necessary. Conversely, congressional conservatives are pushing a framework in which it is much harder to get rid of people, harder to bring them to trial in federal court, and in which military detention and trial are thus the only real options. But at the end of the day, both sides are talking about forms of institutionalization of detention authorities. We are no longer debating whether to engage in non-criminal detention. We are negotiating over the price.

This is actually progress, and it gives rise to the possibility of a mature compromise between Obama and the Congress. The compromise, a truly bipartisan detention policy, would look something like this:

First, Obama would need to read the writing on the wall and face squarely the reality that Guantánamo Bay is not going to close. This is a reality that the administration all but accepts—but not quite. The failure to accept it fully widens the field of conflict with members of Congress who have developed a fierce commitment to keeping Guantánamo, and an even fiercer commitment to not bringing detainees to the United States. Obama has shown that he is not willing to use the powers of his office to make Guantánamo’s closure happen, and Congress has shown that it is willing to use its power to make sure closure doesn’t happen. As long as that’s true, Guantánamo will remain. The sooner the administration accepts this, the sooner it can focus its attention on the interests it really does care about: Protecting the ability to conduct civilian trials where appropriate and protecting the ability to transfer those it does not want to hold to third countries.

Second, congressional leaders would need to stop encumbering transfers from Guantánamo. Maintaining the facility is not the same thing as insisting that virtually every detainee there now will remains there forever. Figuring out whom one really needs to hold is a key part of detention policy. It is hard. There will be mistakes. But that can’t mean we decline to make choices and exercise judgment.

Third, both sides would have to agree that the right way to ensure that there are relatively few mistakes in releasing people is by putting together a serious review process and then letting it do its work. This is what the Executive Order is supposed to produce, and while congressional Republicans have legitimate concerns about recidivism and releases to certain specific countries, they too have argued for a serious review process. In other words, the dispute between them is really over the contours of the review process, not the fact of one. Writing the Executive Order into law, and inflecting it with congressional concerns, offers a means of managing risk without encumbering the Executive Branch’s ability to manage a population of detainees not all of whom it wants to hold.

Fourth, the basic authority to detain the enemy would be codified in statute as well. Interestingly, this is an area in which congressional Republicans and the Obama administration are rather close. The bill introduced today by House Armed Services Chairman Buck McKeon contains language on this point that is virtually identical to the position the administration takes in litigation.

A bill along these lines is a long-shot, but it is not unthinkable. It may be the fall-back position with which both the administration and majorities in Congress can live.

Authors

Benjamin Wittes

Time for Obama to Embrace Guantanamo

Benjamin Wittes — Fri, 21 Jan 2011 10:37:00 -0500

It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his third anniversary failure.

Faced with a recalcitrant Congress, the inability to bring detainees to the United States for trial, and a security situation in Yemen that does not favor the repatriation of large numbers of that country’s nationals, the administration has so far lapsed into paralysis. Obama continues to mouth his commitment to closing Guantanamo but is unwilling to exercise the powers of the presidency to prevent his policy’s frustration. An endless series of leaks and trial balloons promise policy initiatives that do not materialize. And the administration is left mired in the constraints of law, politics, diplomacy and the president’s own rhetoric.

I have a suggestion for the President: Since he is not going to close Guantanamo, he should embrace it.

I don’t say this lightly. I have never before argued against closing Guantanamo, and to be clear, I don’t oppose doing so now. But if Obama is not prepared to do what it takes to effectuate his preference, he should stop pretending and face the fact that the Guantanamo he is stuck with is not that bad. Indeed, it’s something he could talk about very differently from the way he does.

Guantanamo today is not the Guantanamo of the early Bush administration—a site chosen for its lying beyond the reach of the U.S. courts. As I point out in my new book on detention policy, Detention and Denial: The Case for Candor After Guantanamo, it is now a unique detention site for almost the opposite reason. Alone among facilities used by the military to detain enemy forces in the war on terror, detentions at Guantanamo are supervised by the federal courts in probing habeas corpus cases. Detainees there, unlike at any other detention facility, have access to lawyers. Their cases are followed closely by the press, and many hundreds of journalists have been to Guantanamo. What’s more, Obama is reportedly preparing to issue an executive order creating a significant new review process for those detainees who have lost their habeas cases. In other words, while everyone—including Obama—was calling for Guantanamo’s closure, it evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used. While it isn’t the system I would build, it is a system of transparency and review. And that is exactly what Obama has said so eloquently that he wants.

Ironically, the big beef against Guantanamo these days is its reputation, and Obama is contributing to that bad reputation whenever he insists that closing the facility remains a priority. Instead of holding up the changes there as the model of what long-term American counterterrorism detention will and should look like, he delegitimizes the one facility that represents what he purports to want—not to mention the one facility for whose preservation Congress has developed a peculiar fetish.

Instead of fecklessly continuing to argue for the closure of Guantanamo, Obama should announce—maybe in his State of the Union address—that since Congress has made closure impossible, he is committing himself to making Guantanamo a symbol not of excess, not of lawlessness and evasion of judicial review, but of detention under the rule of law. Huge strides, he can honestly say, have been made in this direction both in the last administration and in his, and with his promulgation of his executive order creating a review mechanism, he will make further strides.

In addition, he should commit himself to expanding Guantanamo by bringing to it and subjecting to its processes all counterterrorism detainees captured in the future or held currently anywhere in the world today whom he means to hold in military detention for a protracted period of time. This will ensure that all detainees whom the United States wishes to hold because of something more than a role in local theater operations receive the benefit of the due process norms that have been established at Guantanamo. In exchange, he should ask Congress to ratify in statute the system that has emerged at Guantanamo and lift the restrictions it has imposed both on transfers and on federal court trials.

I do not know if there is a partner in Congress for this deal. But each part of it is good policy on its own terms, and Obama badly needs to change the conversation about Guantanamo. If he is going to be stuck with it, he might as well make it his own.

Authors

Benjamin Wittes

Detention and Denial : The Case for Candor after Guantánamo

Benjamin Wittes — Tue, 21 Dec 2010 00:00:00 -0500

Brookings Institution Press 2010 160pp.

“Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas. . . . It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody.”
—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law “eschews it except when legislatures and courts deem it necessary to prevent grave public harm.” But the habeas corpus legal cases that have come out of the Guantánamo Bay detention facility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America’s current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to “devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing.”

Praise for the Book:

"Detention and Denial is a clear account of what’s wrong with American detention policy. Benjamin Wittes has been speaking clearly about detention, a subject many policymakers and political leaders have not wanted to address. This brief volume brings it all together. Wittes offers a compelling argument about what our failure to act means for our own nation’s security. Those wanting to learn more about Guantánamo and the law of counterterrorism should read this book."
—U.S. Senator Lindsey Graham (R.-South Carolina)

"As always, Benjamin Wittes brings pragmatism and a refreshing honesty to a subject which is usually wrapped in layers of ideology, obfuscation, and deceit."
—Anne Applebaum, Washington Post

"For the past decade, Ben Wittes has been one of America’s most serious and perceptive students of the intersection between law and counterterrorism. Detention and Denial is a balanced, tough-minded appraisal of what needs to be done to transform our ad hoc detention policy into a sustainable architecture that accommodates security imperatives and the rule of law. This should be on the top of the reading list for all three branches of government."
—Michael Chertoff, former U.S. secretary of homeland security

ABOUT THE AUTHOR

Benjamin Wittes

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A Guantánamo Bay Habeas Corpus Case on Constitution Day

Benjamin Wittes — Fri, 17 Sep 2010 16:39:00 -0400

Today, to celebrate Constitution Day, I wandered down to the D.C. Circuit Court of Appeals to listen to oral arguments in a Guantánamo Bay habeas corpus case. Okay, I admit, I didn’t exactly go to celebrate Constitution Day. I went because the court was hearing a case in which I had a particular interest. It just also happened to be Constitution Day.

Yet watching a D.C. Circuit argument turns out to be a particularly good way of observing a holiday that frankly lacks traditional ritual. There are very few places where the Constitution is more visibly alive than in an appellate court argument in a case freighted with powerful liberty interests on the one side and the president’s power to defend the nation and wage war on the other. In Congress, you have to wade chest-deep through political rhetoric, constituent service, ideological power plays, pork, and the other components of sausage making to get anywhere near the Constitution. It’s in there somewhere, to be sure, but it can be very hard to find. The National Archives has the actual Constitution, but it is the Constitution in preservatives, not the Constitution in action. An oral argument heard by highly intelligent judges of radically diverse politics who avoid political posturing entirely and bore in on important question, by contrast, is a living thing of immediate and accessible constitutional beauty.

The Constitution is today a battle zone. Perhaps it always has been. Look around at our political rhetoric and all political movements seem convinced that only they follow the Constitution, and that everyone else shreds it. From Tea Partiers to social conservative to abortion rights advocates to same-sex marriage proponents, everyone purports to speak for constitutional authenticity—and really at some level believes that they do—and yet they are often speaking for diametrically opposite propositions.

Here is my little moment of constitutional authenticity: less than an hour of legal arguments in a politically charged case, in which the naïve viewer would not know which of the two judges who spoke (the third barely asked any questions) was a committed conservative and which was a committed liberal. It took place when I left the room, as I entered it, having every confidence that both had sworn an oath to protect the Constitution and took it seriously and that they would go to conference and decide this case on its merits as they saw them and believing that politics notwithstanding, they stood an overwhelming likelihood of agreeing on its merits.

We fight over the law—as well we should. We fight over judges—which we should not. And we fight over the Constitution too. And I suppose that’s inevitable. But there’s also the Constitution that every day lives and breathes in our institutions. And happily, many of those institutions function far better than our fights acknowledge.

Authors

Benjamin Wittes

Presumed Innocent? Representing Guantánamo Detainees

Benjamin Wittes — Wed, 24 Mar 2010 14:55:00 -0400

The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.

The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Post asked in a January editorial, “Whose side is the Justice Department on: America's—or the terrorists'?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.

I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.

Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.

Neal Katyal came under fire for having represented Salim Hamdan, Osama Bin Laden’s driver, in a challenge to the Bush administration’s original system of trying detainees in military commissions—a challenge that ultimately resulted in a landmark Supreme Court decision striking down the system in the absence of congressional authorization. “It's just insane,” The New York Post huffed, “that a lawyer who defended Osama bin Laden's driver and bodyguard—and who sought constitutional rights for terrorists—could be one of the Obama administration's top legal officials.”

Katyal, who is a good friend whom I first met back when he was still in law school, is a perfectly absurd target for conservative slings and arrows. Far from a conventional liberal, he has been one of the few truly distinctive voices in what has become a sterile and ideologically predictable debate over counterterrorism in the years since September 11. (Disclosure: Katyal also once collaborated with me on a project on the statutory law of counterterrorism jointly undertaken by the Georgetown University Law Center, where he then taught, the Brookings Institution, and the Hoover Institution.)

Katyal’s principal interest was not in defending Hamdan but in establishing the principle that the executive branch could not set up military commissions without going to Congress. In the course of the Hamdan case, however, he and his co-counsel had a duty to minimize their client’s role in Al Qaeda—though Katyal himself focused almost exclusively on the legal challenge, not on the factual defense. One might have wished on Katyal’s behalf that his client had been as pure as the driven snow—Hamdan was accused not merely of being a driver but of ferrying missiles as well—but angels don’t tend to end up in front of military commissions, and the test case for the system was destined to have some ugly facts that counsel would have to downplay or contest. To have done otherwise would have been unethical.

Unlike many people who got involved in detainee representations, Katyal never took the view that the Bush administration’s counterterrorism positions in general were lawless or inappropriate. He never challenged Hamdan’s detention, for example, only the system by which the Bush administration meant to try him for war crimes. In fact, he publicly resisted the early arguments that the courts should assume habeas jurisdiction over Guantanamo—arguing merely that they should preserve jurisdiction over challenges to the tribunals there. He later made common cause with scholars like Jack Goldsmith (and me) in arguing for a national security court to supervise detentions, and he vigorously defended the propriety of detaining enemy fighters outside of the criminal justice system—drawing the ire of many on the left in the process. Since going into government, to the surprise of nobody who knows him well, he has aggressively defended the current and former administrations’ resistance to the extension of habeas jurisdiction beyond Guantanamo to other military detentions overseas.

Ironically, given the suggestions that his current work may involve conflicts of interest, Katyal on arriving at the department voluntarily recused himself from all matters related to Guantanamo. The real problem, therefore, is not that he is pursuing any illicit agenda, but that his diverse and open mind is walled off from some of the harder problems the administration is confronting.

What’s more, whatever one thinks of the Supreme Court’s decision in Hamdan v. Rumsfeld—and I have my problems with it—it has clearly born salutary fruits, especially, ironically, for believers in military commissions. Before the Hamdan decision, the commissions existed by the authority of the president alone. Congress had no investment in them. Democrats had no investment either. The decision, however, forced the Bush administration to go to Congress and seek authorization for them, and this process of institutionalization has continued under the Obama administration and under a Democratic Congress—which refined the system in an admirably bipartisan process last year. While human rights groups and Europeans still complain about the commissions, the result has been a system that is viable now for administrations of both parties and which the Obama administration means to use in at least some cases. For anyone who believes in the institutionalization of robust counterterrorism authorities in statutory law, the quiet development of the military commission system over the past few years represents at least a tentative success story—and Katyal played a huge role in catalyzing that process.

Daskal presents a more complicated case. A former attorney for Human Rights Watch, she spent years as an advocate for an organization with positions no administration (of either party) would likely adopt. Daskal represented the positions of her group honorably and aggressively and thus has a long history of statements on detainee matters at which anyone who favors strong counterterrorism authorities might reasonably balk—against military commissions and against preventive detention without charge, for example. When she served in that role, she and I were often friendly sparring partners in public and private events, at which she would cast my views as threats to liberty and I would cast hers as maladaptive and fantastical dreaming. I’ll freely confess that when I first heard she was going to the department, I wondered about it.

Then I grew up. Even if Daskal believes every word she ever said as a Human Rights Watch lawyer, so what? The department’s National Security Division is no hotbed of human rights activism; it’s a place that takes national security extremely seriously. Having a diversity of voices in such a place is a healthy thing, not a problem.

More importantly, the relevant question is not what Daskal believes but whether she—or anyone else, for that matter—can put aside her own beliefs and represent the interests of her new client. Government lawyers, like private ones, face the problem routinely of aiding in the defense and development of positions in whose correctness they don’t believe. They have an obligation to put aside their own views and act in the interests of their clients in such situations, whether those situations involve the defense of campaign finance laws by Republican lawyers like former Solicitor General Ted Olson or the seeking of the death penalty by capital punishment opponents like Eric Holder. It is a simple matter of professionalism, and I have no reason to doubt that Daskal is a professional. Neither, other than rank prejudice, do the people who are attacking her.

The statement I tapped out made three basic points: that the attacks were unfair to the individuals in question; that the defense of detainees is an important function in any imaginable set of detention policies; and that the Justice Department benefits from a diversity of experience and philosophical points of view in any administration.

The overwhelming response from centrists and conservatives would have been more overwhelming still had the statement not leaked before I was ready to release it, thus forcing me to let it go early. Still, it included a large number of moderate, conservative, and very conservative luminaries of the bar who work in this area—many of them members of the prior administration, and all of them wanting to have the debate over law and terrorism on a civilized basis; that is, on the merits of difficult issues. In talking to people about the statement, however, I heard a recurring complaint from members of the prior administration, one that has in my opinion considerable merit: Our political and philosophical opponents never did this for us when the shoe was on the other foot, people said. Why did nobody stand up for the much-maligned lawyers of the Bush administration?

The attacks during the Bush administration were, of course, a somewhat different animal. They involved criticisms of people’s conduct—or in a few instances their imagined conduct—in office. They took place against the background of an administration whose lawyers had taken extraordinarily aggressive positions, sometimes so aggressive that subsequently other officials in the same administration would not stand behind the work product. To many Bush critics, such differences will seem decisive. The allegations during the last administration were about law-breaking, they will argue, not about the tarnishing of people based on honorable client representations. On the one side are a group of professionals who stood up for the law; on the other are people who undermined their profession by trying to help a client evade the law. End of story.

I beg to differ. The attacks then too were often exceedingly ugly and much less different than many people imagine. What links them is the unwillingness to defend the professionalism of people with whom one disagrees about the law—or with clients to whose policies or activities one objects. Vociferous criticism of some Bush-era Justice Department lawyers was altogether appropriate, but that criticism was often wildly over the top, deploying the language of war crimes and conspiracy to describe what was really just flawed, results-driven lawyering under circumstances of extraordinary pressure.

What’s more, even if one were to concede that some of the worst of the lawyering was criminal, the aura of villainy still swept well beyond those who had pushed the dramatic legal theories to people who were, like those now under attack, honorable professionals trying to give legal advice and represent government clients in good faith. It extended to career CIA lawyers whom field operatives were relying on to keep out of trouble. It extended to people who had worked hard within the administration to ameliorate policies that they then also had to defend in public.

And it extended to people like William J. Haynes II, the then-general counsel of the Pentagon, whose name is forever sullied in countless books, magazine articles, op-eds, and press releases for recommending the approval of coercive interrogation techniques at Guantanamo. Haynes, like Katyal, is a friend, someone about whom I do not pretend to be neutral. But it seems to me that his professionalism warranted a defense it never got. Haynes’s long tenure at the Defense Department was a complicated affair. He made mistakes, mistakes I probably would have made too had I been in his shoes. He also behaved very admirably at important junctures.

The memo for which he has been pilloried is also the reason that the military, unlike the CIA, never waterboarded anybody. Haynes recommended approval of certain modestly coercive techniques—the use of which later spun out of control—but he drew the line at several highly-coercive techniques, waterboarding included. Though they might be legal, he wrote, the military was trained in a tradition of restraint and shouldn’t use them. In other words, he behaved exactly the way the Left often criticizes the CIA for not behaving; even in a crisis setting, he refused to let the criminal law define military interrogation policy. Why is that fact not even part of the conversation about him?

Another example was Haynes’s reaction when then-OLC chief Jack Goldsmith later withdrew the key Justice Department legal opinion on which he had based some of his interrogation judgments. As Goldsmith later wrote, he knew the move would be “painful” for Haynes and he feared it would “weaken him within the department and harm his reputation.” Yet in Goldsmith’s account, Haynes responded altogether admirably. “The conversation lasted less than five minutes,” Goldsmith recalls in his book. “Haynes never pushed back, he and I never spoke at length about the issue again, and he never told me how he implemented the withdrawal within the Defense Department. I later learned, however, that he acted promptly on my request.”

Yet such facts are lost or distorted in much of the journalism and polemic that surrounds these issues. In Haynes’s case, as with some others, this is largely because he has not sought to distance himself from other officials who made different, more aggressive calls or to defend himself in the public arena by portraying himself as a moderating force against the monstrousness of others. In other cases, it’s because some facts were just too juicy to check, and if you say them three times they become true in any event.

Even people who spent their time in government actively seeking to ameliorate the excesses of Bush administration policy came under attack. Goldsmith himself left Justice after pulling the interrogation memos and precipitating a crisis in the administration over warrantless surveillance—only to find his appointment at the Harvard Law School opposed by some colleagues on the grounds that he was allegedly complicit in torture. They didn’t wait to know the facts.

Or take former Solicitor General Paul Clement. His office had frequently pushed the executive branch towards greater moderation in counterterrorism policies, using the threat of Supreme Court setbacks to make policymakers think about detainee access to counsel, for example, and the end-game for long-term military detentions of citizens. None of that prevented people from falsely suggesting that he lied to the Supreme Court about torture.

Similarly, State Department lawyers and policy makers who fought to make U.S. detention policy more defensible in America’s international relations emerged from government to find themselves accused of war crimes.

Even career officials were not immune. A long-serving CIA lawyer friend of mine found himself blasted by a congressional committee and in the blogosphere for a comment he informed the committee he never made. Very few people cared that the comment was an apparent fiction.

And therein lies the conservative anger: The people who made often reckless allegations about Bush administration officials—Harper’s writer Scott Horton, for example, has called Haynes a “Torture Lawyer”; The New York Times all but called for his indictment—have never been forced to wrestle with their smears. Very few people ever stood up publicly for the professionalism—even in disagreement and criticism—of members of the last administration who were trying with varying degrees of success to get the right answers to questions that were no easier then than they are now. That fact is worth a moment’s pause.

Ironically, one of those who did stand up was Katyal himself, who penned a piece in 2007 with Ted Olson decrying both attacks on the patriotism of defense counsel and “the vilification of government lawyers involved in the war on terror.”

I yield to nobody in defense of Katyal, Daskal, and however many other lawyers there may be at Justice who engaged in honorable advocacy on behalf of a group of people I believe the government should have robust authorities against. But perhaps now that the dust has settled on the Bush administration, we might ask ourselves a question that warranted consideration long ago: Why didn’t the bar stand up and defend professionals on the other side as well when those people were under assault?

Authors

Benjamin Wittes

Publication: The New Republic

Statement on Justice Department Attorney Representation of Guantánamo Detainees

Mon, 08 Mar 2010 12:24:00 -0500

The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths.

The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.

Signatories:

Benjamin Wittes
Senior Fellow and Research Director in Public Law, The Brookings Institution
Member, Hoover Task Force on National Security and Law

Robert Chesney
Charles I. Francis Professor in Law, University of Texas School of Law
Nonresident, Senior Fellow, Governance Studies, The Brookings Institution

Matthew Waxman
Associate Professor, Columbia Law School
Former Deputy Assistant Secretary of Defense for Detainee Affairs
Member, Hoover Task Force on National Security and Law

David Rivkin
Partner, Washington, D.C. Office, Baker & Hostetler L.L.P.
Former Deputy Director, Office of Policy Development, Department of Justice, Ronald Reagan and George H.W. Bush Administrations
Former Associate General Counsel, Department of Energy

Lee Casey
Partner, Baker & Hostetler L.L.P.
Former Attorney-Adviser Office of Legal Counsel & Office of Legal Policy, U.S. Department of Justice

Philip Bobbitt
Herbert Wechsler Professor of Jurisprudence and Director of the Center for National Security, Columbia Law School
Member, Hoover Task Force on National Security and Law

Peter Keisler
Former Assistant Attorney General, Civil Division
Former Acting Attorney General, Department of Justice

Bradford Berenson
Partner, Sidley Austin, L.L.P.
Adjunct Fellow, American Enterprise Institute

Kenneth Anderson
Professor of Law, American University School of Law
Research Fellow, The Hoover Institution on War, Revolution, and Peace, Stanford University
Member, Hoover Task Force on National Security and Law

John Bellinger III
Partner, Arnold & Porter LLP
Adjunct Senior Fellow in International and National Security Law, Council on Foreign Relations
Former Legal Adviser to the Department of State and former Legal Adviser to the National Security Council

Philip Zelikow

Kenneth W. Starr
Duane and Kelley Roberts Dean, Pepperdine University School of Law

Larry Thompson
Former U.S. Deputy Attorney General

Charles "Cully" D. Stimson
Senior Legal Fellow, The Heritage Foundation
Former Deputy Assistant Secretary of Defense for Detainee Affairs

Chuck Rosenberg
United States Attorney, Eastern District of Virginia (2006-08), Southern District of Texas (2005-06)

Harvey Rishikof
Former Legal Counsel Deputy Director of the FBI
Former Administrative Assistant to the Chief Justice of the United States

Orin Kerr
Professor, George Washington University Law School

Daniel Dell’Orto
Former Principal Deputy General Counsel, U.S. Department of Defense
Former Acting General Counsel, U.S. Department of Defense

Suzanne E. Spaulding
Former Executive Director of the National Commission on Terrorism
Former Chair of the ABA Standing Committee on Law and National Security

Frank Jimenez
Former General Counsel of the Navy
Former Deputy General Counsel (Legal Counsel), Department of Defense

William H. Taft IV
Former Legal Advisor, U.S. Department of State

Viet Dinh
Professor of Law, Georgetown University Law Center
Principal, Bancroft Associates PLLC
Former Assistant Attorney General for Legal Policy

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