Realistic Expectations on Detainee Policy
Because I haven't had much time to write lately, I'm usually late to the discussion. Such is the case with the latest round of announcements from the Obama administration regarding its detainee policy. This week, the Obama administration filed a brief that attempted to set forth, in general terms, the administration's position regarding its power to detain people at Guantanamo Bay.
Many civil liberties organizations and liberal commentators reacted with disappointment to the brief, claiming that Obama was asserting detention powers that were essentially comparable to those claimed by the Bush administration. While I agree with many of the criticisms these groups have leveled at the Obama administration in this area (particularly regarding its lack of transparency), I think this one misses the mark and reflects entirely unrealistic expectations.
Like the ACLU and other organizations, I would prefer that the U.S. government approach terrorism through a criminal paradigm, instead of a war paradigm. I think traditional law of war precedents are ill-suited for the indefinite timeframe of the "war on terror." Treating terrorists as combatants, instead of criminals, has proven over the last eight years to be problematic and ineffective. And it is my sincere hope that the Obama administration chooses to process terrorist suspects through the criminal justice system going forward.
That said, I think it is completely unrealistic for anyone to expect that the Obama administration would adopt, as a legal position, that it lacks the authority to militarily detain al Qaeda and Taliban members captured abroad.
In 2003, in the Hamdi case, the Supreme Court upheld the president's authority to detain Yaser Hamdi, a U.S. citizen who was captured while fighting for the Taliban and eventually transferred to a U.S. military brig in South Carolina. The Court held that the AUMF, read in conjunction with traditional law of war principles, implicitly authorized the president to detain Hamdi and hold him without charges as a combatant.
Now, I happen to think Hamdi was wrongly decided, but the fact is that it remains good law. One can argue that Hamdi should be viewed as only applying to situations where a person is captured on the battlefield, but that is by no means obvious from the opinion, particularly when read in conjuction with other cases like ex parte Quirin (another wrongly decided case). The Obama brief, as I read it, is little more than a restatement of the general detention authority set forth by the Court in Hamdi.
Under the AUMF, the president is unquestionably authorized to use military force abroad against the Taliban and al Qaeda. If, while exercising this power, the U.S. military captures members of those groups, it also has the power--under Hamdi--to detain them. That doesn't mean that they can be held indefinitely without process, but it does mean that they can be held without the need for criminal charges (whether the same is true of people captured within the United States is a different question).
Furthermore, the Obama position really is different than the Bush position, and on more than just a cosmetical level. The Bush administration claimed the authority to detain anyone remotely related to terrorism, including people who weren't even alleged to have any connection to the Taliban or al Qaeda. That's how Chinese Uighurs and other random people ended up at Guantanamo Bay. The Bush administration claimed the inherent authority, regardless of Congressional authorization, to detain whomever it wanted. The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation. It not only limits the class of people who can be subject to military detention, but it makes the authority itself entirely derivative of Congress' authority, meaning Congress could circumscribe it further if it chooses to.
With respect to foreign detainees, the real test of the Obama administration will be how it chooses to exercise its powers. What will Obama do with captured terrorists (or accused terrorists)? Will he apply a law of war framework (i.e. hold them until the "end of hostilities") or will he try to break with that unhelpful paradigm and start treating this as a criminal issue again. I sincerely hope that it's the latter.
Many civil liberties organizations and liberal commentators reacted with disappointment to the brief, claiming that Obama was asserting detention powers that were essentially comparable to those claimed by the Bush administration. While I agree with many of the criticisms these groups have leveled at the Obama administration in this area (particularly regarding its lack of transparency), I think this one misses the mark and reflects entirely unrealistic expectations.
Like the ACLU and other organizations, I would prefer that the U.S. government approach terrorism through a criminal paradigm, instead of a war paradigm. I think traditional law of war precedents are ill-suited for the indefinite timeframe of the "war on terror." Treating terrorists as combatants, instead of criminals, has proven over the last eight years to be problematic and ineffective. And it is my sincere hope that the Obama administration chooses to process terrorist suspects through the criminal justice system going forward.
That said, I think it is completely unrealistic for anyone to expect that the Obama administration would adopt, as a legal position, that it lacks the authority to militarily detain al Qaeda and Taliban members captured abroad.
In 2003, in the Hamdi case, the Supreme Court upheld the president's authority to detain Yaser Hamdi, a U.S. citizen who was captured while fighting for the Taliban and eventually transferred to a U.S. military brig in South Carolina. The Court held that the AUMF, read in conjunction with traditional law of war principles, implicitly authorized the president to detain Hamdi and hold him without charges as a combatant.
Now, I happen to think Hamdi was wrongly decided, but the fact is that it remains good law. One can argue that Hamdi should be viewed as only applying to situations where a person is captured on the battlefield, but that is by no means obvious from the opinion, particularly when read in conjuction with other cases like ex parte Quirin (another wrongly decided case). The Obama brief, as I read it, is little more than a restatement of the general detention authority set forth by the Court in Hamdi.
Under the AUMF, the president is unquestionably authorized to use military force abroad against the Taliban and al Qaeda. If, while exercising this power, the U.S. military captures members of those groups, it also has the power--under Hamdi--to detain them. That doesn't mean that they can be held indefinitely without process, but it does mean that they can be held without the need for criminal charges (whether the same is true of people captured within the United States is a different question).
Furthermore, the Obama position really is different than the Bush position, and on more than just a cosmetical level. The Bush administration claimed the authority to detain anyone remotely related to terrorism, including people who weren't even alleged to have any connection to the Taliban or al Qaeda. That's how Chinese Uighurs and other random people ended up at Guantanamo Bay. The Bush administration claimed the inherent authority, regardless of Congressional authorization, to detain whomever it wanted. The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation. It not only limits the class of people who can be subject to military detention, but it makes the authority itself entirely derivative of Congress' authority, meaning Congress could circumscribe it further if it chooses to.
With respect to foreign detainees, the real test of the Obama administration will be how it chooses to exercise its powers. What will Obama do with captured terrorists (or accused terrorists)? Will he apply a law of war framework (i.e. hold them until the "end of hostilities") or will he try to break with that unhelpful paradigm and start treating this as a criminal issue again. I sincerely hope that it's the latter.
posted by A.L. at 9:00 AM
16 Comments:
I would add that, from a diplomatic standpoint, the idea of charging terrorist suspects in US courts is bound to run into problems as well. It works fine to the extent that everyone agrees that X person is a legitimate suspect that was involved in X act, but there's bound to be a point at which some other actor feels we're overstepping our bounds or asserting too broad of a power still.
With that in mind, I think our best bet is to stick as closely as possible to the Geneva Convention, or even to draw up a new round of international agreements.
my only tiny little problem with your approach is this - the BUsh Administration refused, time and time again, to exclude U.S. citizens from its definition of enemy combatants. In so doing, they made sure that people knew that they could be swept up and sent away. Mr. Obama has not yet repudiate dthat definition of enemy cobatants, and so until he does, the disappointment applies as much to a perception of danger to U.S. citizens as it does to anyone else.
Philip,
The reason Obama isn't excluding U.S. citizens is because Hamdi himself was a U.S. citizen. In other words, no distinction is made between U.S. citizens and non-citizens if captured abroad. That's why I think Hamdi was wrongly decided, but that's how it was decided. That's the law.
The important remaining distinction is between those capture abroad and those captured within the U.S., but the Obama brief was just dealing with Gitmo (i.e. those captured abroad).
GG:
the Obama administration ... makes only the most cosmetic and inconsequential changes ... retaining the crux of Bush's extremist detention theory.
AL:
the Obama position really is different than the Bush position, and on more than just a cosmetical level.
Decisions, decisions. I can't decide, I agree with them both.
That said, I think it is completely unrealistic for anyone to expect that the Obama administration would adopt, as a legal position, that it lacks the authority to militarily detain al Qaeda and Taliban members captured abroad.
IANAL, but I'd give them the authority to detain as long as they would file criminal charges within a reasonable period.
Otherwise Obama is no different than Bush.
I'm rather disappointed with the bait and switch and the ever increasing list of Obama broken promises.
The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation.
So how many people will Obama free from detention based on that important distinction?
"The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation."
So how many people will Obama free from detention based on that important distinction?
And who exactly will decide whether people detained are "members of the Taliban and al Qa'eda"? Or, perhaps, people with "links" to those parties/organisations?
And who exactly will decide whether people detained are "members of the Taliban and al Qa'eda"? Or, perhaps, people with "links" to those parties/organisations?
The president will in the first instance, but his determination will be reviewed by a tribunal (pursuant to the MCA) and all detainees will have the right seek habeas review by a federal judge. That's the law now.
So how many people will Obama free from detention based on that important distinction?
I suspect that, after review, a good portion of those remaining at Guantanamo will be released.
I suspect that, after review, a good portion of those remaining at Guantanamo will be released.
i hope this turns true. Speaking as someone who voted BO in my state's primary and on the national presidential race, i sincerely
hope you are right.
but.... i got a bad feeling.
i guess we'll see...
obama is doing his best to turn an unreasonable (and unamerican) situation around. there are no easy answers, and critisism will not be hard to level at any turn.
that being said, comparing obama to bush is like comparing apples to cinder blocks. if intelligence was measured in height, obama would mount everest and bush would be a speed bump.
I suspect that, after review, a good portion of those remaining at Guantanamo will be released.
Why haven't they beeen released yet? Should it not be trivial to figure out whether or not they were covered by AUMF? We have been holding them up for how many years now, so we should know whether an AQ/Taliban connection exists or not.
Incidentally Bush also released a good portion of prisoners at Gitmo.
In any case the larger issue is why Obama is restricting this to Gitmo only and not saying the same for other places like Bagram.
Imagine an innocent person who is detained and tortured in Afghanistan by the criminal Cheney administration. What recourse does the Obama admin provide him to redress it?
Under what authority may the President unilaterally declare that a given adversary does not qualify for Geneva and if captured is an enemy combatant and not a POW? Is this is in the AUMF? The Taliban was the legitimate government of Afghanistan.
Could not we attack Canada and simply declare their soldiers ineligible for Geneva? Doesn't this make all war-related International agreements moot?
Under what authority may the President unilaterally declare that a given adversary does not qualify for Geneva and if captured is an enemy combatant and not a POW? Is this is in the AUMF? The Taliban was the legitimate government of Afghanistan.
The Geneva Conventions are pretty clear that to qualify as a POW you need to wear uniforms, follow the laws of war, etc. Most of these detainees don't qualify as POWs under Geneva. They are still entitled to the general protections of Article 3 of the Geneva Conventions (something the Bush administration tried to deny), but the Obama administration is and will comply with Article 3.
They are still entitled to the general protections of Article 3 of the Geneva Conventions (something the Bush administration tried to deny), but the Obama administration is and will comply with Article 3.
While the Bush administration tried to initially deny this, they were slapped by the US Supreme Court and subsequently agreed that Article 3 applied
the Bush administration, after a resounding rebuke by the D.C. federal appeals court, ultimately acknowledged that it lacked any legal basis for continuing to hold the Uighurs as enemy combatants.
So while the Obama position may be significantly different from the initial Bush position, it is not different from what Bush was ultimately forced to accept.
Which is why Obama's position appears more as a status quo than a change. Fo Obama to institute change he would have to expand this beyond Gunatanamo. Say that he will ban renditions. Say that due process still applies.
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