January 22, 2009 12:56 PM

Escape from Gitmo

Posted by Michael D. Goldhaber

Guantánamo Bay was where George W. Bush went to avoid law, both international and domestic. President Bush detained terror suspects on murky authority in the U.S. military enclave at Cuba's tip, and that is where he would have tried them had the U.S. Supreme Court let him proceed. Bush's military commissions were first struck down in Hamdan v. Rumsfeld (2006), for denying protections guaranteed by the U.S. military code and the Geneva Conventions; and then again, after the commissions were authorized in new form by Congress, for violating the constitutional right to habeas corpus review, in Boumediene v. Bush (2008). Friend and foe alike came to see the inmates' orange jumpsuits as the emblem of Bush's executive overreach.

Closing Guantánamo is therefore a gimme for President Barack Obama--and the executive order to close it within a year comes as no surprise. Yet shuttering Gitmo only begins the debate over what to do with terrorism detainees.

Two loosely defined camps took shape in the fall. Pragmatists from across the political spectrum called for a noncriminal detention regime sanctioned by Congress, under the review of a specialized terror court. "We're united by the belief that the legal architecture pre-9/11 is not appropriate for contemporary security challenges," says professor Matthew Waxman of Columbia Law School, "nor is the Bush administration's expansive and aggressive assertion of unilateral executive authority." But to human rights advocates like Harold Koh, dean of Yale Law School, a terror court is just the same stunted legal concept as the Bush military commissions.

"Why close Guantánamo," he asks, "and substitute something that brings it onshore?" As Koh put it in testimony before the Senate Judiciary Committee last fall: "Our standard for American justice should be the due process of law required by the U.S. Constitution and international law, not 'at least it's better than Guantánamo.' " Koh and company believe that old-fashioned, September 10-style criminal courts are up to the task of trying Al Qaeda.

To be clear, this debate is not about the 20,000-odd detainees in Iraq and Afghanistan, whom almost everyone is content to treat as combatants under the laws of war ["Black Hole," Litigation Supplement, November 2008]. Rather, the national argument centers on the suspected terrorists in Guantánamo, whom Bush spokesman Ari Fleischer, in his notorious overgeneralization of January 2002, called the "worst of the worst." Nearly 800 detainees have passed through the Caribbean camp since 9/11, but about 550 have been transferred or released, with about another 60 cleared for transfer or release. That leaves fewer than 200 prisoners. Many are low-level suspects who would qualify for release or transfer except that they hail from a weak state--most commonly, Yemen--that the United States does not trust to handle even minor threats. The number of such low-level detainees is likely to shrink further as the new administration uses its political goodwill to persuade other nations to give them refuge.

Then there is a hard core of about three dozen suspected Al Qaeda or Taliban leaders, including Khalid Sheikh Muhammed, who has confessed to directing the 9/11 plot-and personally beheading the journalist Daniel Pearl. According to Benjamin Wittes of the Brookings Institution, who has studied the Gitmo population in detail, we are left with "the worst of the worst, whether or not they're Yemenis, and Yemenis, whether or not they're the worst of the worst." This toxic residue--as well as any new terrorism suspects taken into custody--is the problem of President Obama.

On this, as on most policies, Obama is hard to predict. During the campaign he seemed to advocate trying the detainees in existing institutions, remarking last July: "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice." The transition team sent mixed signals, with early media reports indicating that a terror court system was under serious consideration, and later reports suggesting otherwise. The one-year timetable for Gitmo's closure buys time for a broad assessment of detention policy. Early remarks by government officials suggest that the main alternative to prosecution under consideration is the use of military commissions in select cases, albeit not at Guantanamo, and perhaps with revised procedures. Some alternative to prosecution may appeal to the centrist in Obama. At bottom, it responds to the (contested) perception that criminal trials are more apt to free bad guys, and that bad guys are apt to strike again. The Pentagon indeed claims that 37 former detainees are "suspected or confirmed" to have returned to terrorism. No politician can afford to spring a jihadi Willie Horton.

What the president truly thinks is anyone's guess. But progressives, who thought they had won the legal war over the war on terror, watched in horror as the idea of a terror court gained traction this fall in the media, thanks in part to the Hoover Institution's organization, the Task Force on National Security & Law, which includes public intellectuals like Wittes and Waxman. Some progressives girded for a new fight. As Elisa Massimino, the director of Human Rights First, warned the Senate last fall: "Creating a national security court would require devising from scratch the procedures, precedents, and body of law that would govern such a court. We already have walked down that path twice since
9/11. . . . The disarray that has plagued the military commissions at Guantánamo-with abundant litigation and internal dissension within the military command structure-does not bode well."

As an intellectual counterweight to the Hoover group, 20 human rights academics have formed a working group to oppose detention without trial. The group's three cochairs--Yale's Koh, Columbia's Sarah Cleveland, and Fordham University School of Law's Catherine Powell--stress that a sharp break from Guantánamo is needed to regain credibility with both America's traditional allies and moderate Islam.

"Obama needs to stake out a position distinctive from Bush on the treatment of terrorism suspects, or the promise that Obama holds out to the international community will be lost," says Cleveland. "If the new policy is not credible with moderate Islam," notes Koh, "then it will only create more enemies of the U.S." Indeed, even the best-designed terror court would create a perception problem, by funneling Islamic defendants into a separate justice system. To provoke a constitutional challenge with a caption like Muhammed v. Obama, they say, would send exactly the wrong message in the Muslim world.

In their position paper the progressive scholars argue that preventive detention violates basic tenets of American justice and human rights, by locking people up for what they might do, rather than what they have actually done. Michael Ratner, president of the Center for Constitutional Rights and unofficial leader of the Guantánamo defense bar, wrote in a letter to The New York Times that preventive detention "cuts the heart out of any concept of human liberty."

To be fair, portraying terror courts as a continuation of Guantánamo is an oversimplification. "It's not some sort of Star Chamber," says the Brookings Institution's Wittes, who prefers the label "national security court." Wittes was among the first to oppose the terror prosecutions of Bush's first term, as an editorialist for The Washington Post. "I find it odd being portrayed as a right-wing dinosaur," he says. "I regard what we're proposing as an attempt to tailor traditional detention authorities to procedural safeguards associated with criminal justice. It's a liberalization of the law of war."

Indeed, it is often hard to distinguish between the rhetoric used by the two sides in this debate. Wittes sounds a lot like Koh when he writes: "Closing Guantánamo will do the new president little credit if he is seen as having rebuilt it somewhere else."

Public intellectuals have put forward an assortment of terror court frameworks, in various states of completion. Plans for some sort of congressionally sanctioned court specializing in national security have been proposed by Jack Goldsmith of Harvard Law School with Neal Katyal of Georgetown University Law Center (reportedly Obama's pick for principal deputy solicitor general); Benjamin Wittes of Brookings with Mark Gitenstein, a Mayer Brown partner and former congressional counsel; Amos Guiora of the University of Utah S.J. Quinney College of Law; Andrew McCarthy of the Foundation for Defense of Democracies' Center for Law and Counterterrorism; and the Georgetown law professor David Cole.

The name that most jumps off this list is Cole: His commentary appears in The Nation and on National Public Radio, he has received awards from the American-Arab Anti-Discrimination Committee and the American Muslim Council, and he has authored two leading anti-Bush books, including Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. When Cole unveiled his position in the Boston Review in December, conservative bloggers remarked that the world had turned "upside down." It is especially jarring to find Cole arguably on the same side of the debate as Goldsmith, who, despite winning liberal plaudits for opposing torture in the Bush Justice Department, remains an adamant critic of the International Criminal Court and the Alien Tort Statute.

Who would these odd bedfellows like to lock up? Cole would allow the preventive detention-under congressional authority and the supervision of a national security court-of persons involved in actual hostilities with the U.S. on the part of Al Qaeda or the Taliban, or members of those groups who can be shown, by their activities or positions, to have played a direct role in furthering its military ends. Goldsmith, tracking Congress's post-9/11 authorization of force, would extend the detention net to cover those with "membership in the command structure of Al Qaeda and its cobelligerent terrorist organizations." This distinction may or may not have consequence. Cole wrote that Goldsmith's plan is too open-ended to be constitutional; Goldsmith responds that there is "not an eyelash's worth of difference" between the two plans.

However the defendant class is defined, defendants in a terror court would probably enjoy un-Bush-like protections. Columbia Law School's Waxman (who has not endorsed any plan) writes that, in contrast to Bush's military commissions, a proper national security court would hold open, adversarial hearings, with rigorous judicial review. Goldsmith and Katyal would guarantee equal treatment for citizens and noncitizens. Wittes and Gitenstein promise defendants the assistance of counsel, the ability to see and challenge a reasonable summary of evidence and call witnesses, a written public opinion, and a right of appeal, with ongoing review of detention. Amos Guiora would place national security judges within the existing Foreign Intelligence Surveillance Court, while giving suspects the benefit of Miranda rights, remand hearings, and sentencing guidelines.

Even so, Cole and his unlikely allies should expect no Valentine's Day cards from readers of The Nation. Where Cole's court, for instance, would differ most essentially from criminal courts is in lowering the standard of proof. Cole would merely require clear and convincing evidence to justify an initial detention. If the government wishes to detain someone indefinitely, Cole would require the judges to review the case periodically, and with each additional hearing, the government would need to make a stronger showing to justify detention.

Advocates of terror courts do not wish to prosecute terror suspects under the criminal rules, Wittes says bluntly, because "the evidence sucks." In rare cases it is tainted by torture. More generally, the evidence supporting detention is weak because suspects were rounded up in haste after 9/11, and terrorists are hard to distinguish from the civilians among whom they hide.

Looser rules are needed, Cole suggests, because "the criminal process is insufficient to incapacitate the enemy." Cole here sounds shockingly like the 9/11-fixated Wittes, who writes in his book Law and the Long War: "Without a strong capacity to lock up the enemy, America merely awaits the next attack." Columbia's Waxman draws a provocative analogy to the law of bomb targeting, arguing that harm to a certain number of innocent civilians should be accepted as a tragic yet natural consequence of war. This thought experiment might have offended the English jurist William Blackstone, who wrote the maxim "It is better that ten guilty men escape than that one innocent suffer." But Waxman and Wittes say that the protective bias of criminal law should not apply where the risks of setting free a dangerous man are so high. To the intellectual vendors of terror courts, the dangers are real and not hypothetical. In Wittes's view, the terrorist who carries the proverbial ticking time bomb exists; he has been tortured, and, consequently, he is untriable.

The “untriable terrorist” is the premise underlying almost every argument pushed by the advocates of national security courts. But a pair of former federal prosecutors, James Benjamin, Jr., and Richard Zabel of Akin Gump Strauss Hauer & Feld, call it a canard. In a May 2008 report on behalf of Human Rights First, Benjamin and Zabel showed that, of 160 terrorist defendants tried in the criminal courts between 9/11 and November 2007, 91 percent were convicted ["By Any Means Necessary," Litigation Supplement, November 2008]. Meanwhile, Bush's military commissions, overreaching and paralyzed, have tried and convicted only two defendants. The ex-prosecutors' voices have been largely drowned out during the presidential transition debate over detention, yet they deserve to be heard.
"Let's put aside the uncomfortable logic that because we did something wrong and illegal and tortured people, we should guard against the consequences by creating a national security court," says Zabel. "The fact is that terrorists are prosecutable."

The U.S. courts have developed flexibility through the wisdom of experience. Statutes criminalizing material support, broadly interpreted, give courts ample ability to convict terrorists. While it is true that evidence procured through torture is inadmissible, say Zabel and Benjamin, independent evidence is likely to convict the handful of Guantánamo detainees who suffered torture, including Khalid Sheikh Muhammed. Alhough one old case, U.S. v. Toscanino, may suggest that extreme government torture strips a court of jurisdiction, Benjamin and Zabel think that precedent is tenuous. The fact that a detainee may have been arrested as the consequence of another's torture is not an obstacle to prosecution, say the ex-prosecutors. There are public safety exceptions for Miranda warnings. Poorly documented evidence, seized abroad under difficult conditions, can be admitted as long as there are indicia of authenticity. Courts are adept at handling declassified information, thanks to a well-crafted and well-used statute, the Classified Information Procedures Act of 1980.

Zabel and Benjamin dismiss the danger of defendants passing secrets to their colleagues as fanciful: Longtime detainees are unlikely to have information of value, and it would be hard to telegraph a message in open court without being detected. While the ex-prosecutors concede that some defendants--for instance, Slobodan Milosevic--speechify effectively in court, a disciplined judge can control his courtroom; and most observers will be more impressed by the display of fair and open justice. Federal district court judge John Coughenour, who tried "millennium bomber" Ahmed Ressam in 2005, testified before the Senate in June: "The United States courts, as constituted, are not only an adequate venue for trying suspected terrorists, but also a tremendous asset against terrorism."

So what is President Obama's next move? The executive order envisions a review of the detainees' files, first to determine if they can be tranferred abroad, and then if they can be prosecuted. Benjamin and Zabel recommend that this review be conducted by a team of trained prosecutors and law enforcement agents, not emotionally invested in any policy outcome.

No one opposes such a review of the files, but everyone tends to assume that his or her own view will be vindicated. Those who emphasize human rights assume that the bad guys are triable, so there is no conflict between their lofty ideals and hard reality. Those who emphasize national security assume that the bad guys are untriable, because there is always a conflict between lofty ideals and hard reality. "In fairness," says Benjamin, "I don't think anyone can know one way or another what they will find."

In his inaugural address, President Obama rejected as false "the choice between our safety and our ideals." If an impartial review concludes that Khalid Sheikh Muhammed and his friends are triable, then the new administration's first dilemma evaporates. But if the review concludes that the worst of the worst can not be convicted in court, then the President, notwithstanding his rhetoric, must make a choice.

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