Advancing a Free Society

My former colleagues on the Washington Post editorial page have weighed in quickly on Eric Holder’s speech yesterday with an editorial entitled, “It’s Time to Release the Drone Memos.” The gravamen of the editorial, as the title suggests, is that the administration “should release the Justice Department memorandum that lays out the domestic and international strictures which, it says, undergird its drone policy.” The editorial does not take issue with Holder’s speech. Indeed, it says generally that,

We agree with the thrust of Mr. Holder’s statements. But these are assertions based on the administration’s interpretation of the law, not an explication of which laws it relies on in justifying these strikes.

The country learned all too well during the Bush administration’s indefensible use of torture how existing legal authorities can be twisted. Soon after President Obama took office, Mr. Holder made public many of the Bush-era “torture” memos crafted by the Justice Department’s Office of Legal Counsel; he should now perform a similar public service by releasing — in redacted form, if necessary — the department memos that deal with drone strikes.

I certainly support releasing as much of the underlying documentation as possible, and I have no end of admiration for the Post editorial page. That said, this argument seems to me a little bit off. For one thing, I think the administration deserves considerable credit for–beginning with Harold Koh’s ASIL speech, continuing through Jeh Johnson’s and John Brennan’s speeches, and culminating in this one by Holder–laying out a great deal of its general legal theory. It has gone from near total silence on the subject as drone strikes ramped up to a fairly comprehensive account of the legal basis for what we are doing.

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It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

Rahmatullah, you’ll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts–a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

The decision, as I described in this post, created a real diplomatic problem. British officials–who actually want nothing to do with Rahmatullah–were forced to make significant efforts to free him. American officials, meanwhile, were placed in a bizarre position too. To fail to move expeditiously to free Rahmatullah potentially subjected the government and officials of a closely allied country to serious legal problems before their own courts. On the other hand, the British requests clearly didn’t reflect anything more than legal compulsion, and there is something offensive about the idea that the United States would have to free a detainee because of the order of a foreign court in a case to which the United States is not even a party and in which reaked of America-bashing. And on the third hand, there were some additional, uh, complications that militated towards a release: The United States was, in fact, party to a memorandum of understanding with the British that suggested that the British could have Rahmatullah back if they wanted him–as officials were now, under court order, pretending to do. And our own Detainee Review Board in Afghanistan had ruled that while Rahmatullah was lawfully detained, he might be transferred to Pakistan safely were appropriate security arrangements made.

Continue reading Benjamin Wittes…

Ritika linked yesterday to this New York Times oped by USC law professor Mary Dudziak, which opens:

THE defense secretary, Leon E. Panetta, recently announced that America hoped to end its combat mission in Afghanistan in 2013 as it did in Iraq last year.  Yet at Guantánamo Bay and elsewhere, the United States continues to hold enemy detainees “for the duration of hostilities.”

Indeed, the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy.

Dudziak concludes:

Mr. Obama is trying to have it both ways. Ending major conflicts in two countries helps him deliver on campaign promises. But his expansive definition of war leaves in place the executive power to detain without charges, and to exercise war powers in any region where Al Qaeda has a presence.

I confess myself baffled by this argument, but to the extent I understand it, it warrants a brief response. It is simply not true that the Obama administration contends–or is acting like–the end of hostilities has no consequences for detention authority. In Iraq, the United States once held tens of thousands of detainees. Now it holds, and claims the authority to hold, none. With respect to the war against Al Qaeda and the Taliban, the United States still has troops deployed in Afghanistan who are actively fighting Al Qaeda, the Taliban, and associated forces on a daily basis. Whatever the point at which hostilities can reasonably be said to be over for purposes of conveying detention authority, we are nowhere near that point yet. And critically, I don’t know anyone in the Obama administration who would argue that detention authority will persist after hostilities really are over–any more than we took our prisoners with us when we left Iraq. Indeed, if the negotiations with the Taliban that are now getting started were to produce a peace deal, it’s hard for me to imagine that detention authority would persist vis a vis Taliban detainees.

Continue reading Benjamin Wittes…

Writing in Salon magazine, Laura Pitter of Human Rights Watch declares that “fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.” Pitter spent Tuesday and Wednesday of this past week, as did I, watching the Al-Nashiri military commission. But in reading her piece, I wondered whether she and I had watched the same arguments. The arguments I saw reflected a sharply adversarial process, with a serious judge, very fine advocacy on both sides, and a series of motions that raised issues that differ only at the margins from those that would arise in a federal court proceeding. Pitter, by contrast, says that “this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems.”

The trouble is that many of the “vast differences” Pitter describes are actually mirages. They exist largely–or in some cases exclusively–in the minds of those who want very badly to see them. Indeed, nearly every point in Pitter’s essay is wrong, or at least misleading, and she is putting these points out in the name of an important human rights NGO whose monitoring of legal proceedings is taken seriously by many people. While there are legitimate questions about the developing military commissions system, it is important to focus on the real questions, not the mirages. I therefore offer the following point-by-point response not because I hope to convert Pitter to the cause of military commissions, about which I have mixed feelings myself, but rather as an exercise in clarifying what is truly distinctive about the commissions process, and what is not.

Continue reading Benjamin Wittes…

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 again 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.

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By Benjamin Wittes & Robert Chesney

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

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

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