Certification as Sabotage: Lessons from Guantanamo Bay.

• Author: Manners-Weber, David

INTRODUCTION

One of President Obama's most public failures was his inability to close the prison at Guantanamo Bay. He had campaigned against the facility throughout the 2008 election, (1) and on his second day in office signed an executive order ordering the base closed within a year. (2) But eight years later the prison remained defiantly open.

A major reason for this failure was congressional opposition. (3) While this opposition took different forms, one critical tool has received little attention: the certification requirements that governed the transfers of detainees from Guantanamo to foreign countries. Beginning in late 2010, Congress demanded that, prior to a detainee transfer, the Secretary of Defense certify that the receiving country had taken the steps "necessary to ensure that the individual cannot engage or re-engage in any terrorist activity." (4) While the precise language of this certification changed over time, its effect was the same: Congress's requirements made the Secretary of Defense "personally responsible for preventing recidivism," (5) accountable for any mistakes.

Certification requirements have long been thought of as a weak check on the Executive. "When push comes to shove, a certification requirement will not prevent the executive branch from acting, if it believes that there are compelling reasons to do so," wrote one commentator. (6) Yet at Guantanamo these requirements proved "devastating." (7) "As Secretary, that provision required that I sign my life away," said former Defense Secretary Leon Panetta. (8)

The success of certification requirements in stymieing Guantanamo's closure makes clear that it is time to rethink the narrative of their inefficacy. This Comment argues that certifications have been underestimated because they have been undertheorized. Certifications require an individual to attest that a state of affairs exists before a particular action can be taken. (9) Fundamentally, then, certifications should be understood as tools to localize accountability for a judgment. In the context of high stakes or uncertain decisions, this localization of responsibility concentrates the risk of blame: a decision may jeopardize the certifier's job security, personal welfare, and public image. While such concerns may not be the only guiding considerations of public officials, they are surely among them. (10) By heightening the risk of blame, certifications can change an individual's decisionmaking calculus, thereby becoming a stronger influence on executive action than the scholarly consensus acknowledges.

Part I surveys the existing literature on certifications before contrasting the literature's conclusions with the important role certifications played at Guantanamo Bay. The discrepancy shows that a new account is needed. Part II provides that new account, showing when certifications can be effective--that is, when they can influence the Executive to behave in ways it would have otherwise resisted. Part III leverages Part II's theoretical account to explore the 2015 American SAFE Act, a bill that would have imposed crippling certification requirements on the Iraqi and Syrian refugee programs. The American SAFE Act illustrates that the substantive and political power of certifications extends beyond Guantanamo Bay, while also revealing that legislators themselves have varying sophistication in their understanding of this power. The Comment concludes that, contrary to the prevailing scholarly view, certifications instituted under the right conditions can meaningfully shape executive policy making.

1. CERTIFICATIONS' UNDERAPPRECIATION

   1. The Existing Scholarship

      Congressional requirements that an executive officer personally attest to a policy decision are not new; they appeared early in both foreign and domestic policy. (11) However, certifications became much more common in foreign affairs beginning in the 1970s as Congress began to reassert itself against the President. (12) According to one 1999 tally, certification requirements appeared in "more than one hundred provisions relating to U.S. foreign policy," (13) including in legislation concerning specific nation-states and multilateral organizations, as well as on particular foreign policy issues. (14) For instance, a number of certification requirements in the late 1970s and early 1980s conditioned foreign aid upon the Executive affirming that the receiving country had made human rights progress. (15) Such requirements are intended both to control the executive branch in foreign affairs and to influence the behavior of the foreign states themselves. (16)

      Some of the United States's most important national security laws have certification requirements. For instance, Section 702 of the Foreign Intelligence Surveillance Act, the provision that authorizes the warrantless surveillance of non-U.S. persons reasonably believed to be outside the United States, (17) requires a special court to approve annual certifications by the Attorney General and the Director of National Intelligence. These certifications, among other things, require the officials to attest that a "significant purpose" of the surveillance is to obtain foreign intelligence information and that the surveillance complies with certain statutory restrictions. (18) The War Powers Resolution, too, employs a certification requirement: the President may trigger a thirty-day extension to the Act's sixty-day use-of-force window by certifying to Congress "that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces." (19)

      Despite their historical provenance and contemporary popularity, certification requirements have been met with little scholarly discussion. While scholars have periodically examined executive certifications in the context of particular programs, (20) the literature on certifications themselves is limited. What exists has been particularly influenced by human rights certifications made during the Carter and Reagan Administrations; these certifications, required to continue foreign aid to specific countries, were controversial. (21) Perhaps as a result, the literature is largely dismissive of the possibility that certifications can meaningfully shape executive behavior.

      Mark Chinen's Presidential Certifications in U.S. Foreign Policy Legislation provides the most comprehensive theoretical treatment to date. Chinen argues that certification requirements attempt to control executive action in foreign affairs by "requiring the executive branch to take into account the concerns they [the certification requirements] represent--they ensure that the President has covered all the bases before making a foreign policy decision." (22) But, Chinen concludes, certification requirements "are ultimately ineffective in controlling executive behavior." (23) Chinen cites a number of factors that limit certifications' capacity to shape executive behavior, including Congress's limited ability to contest a certification when it disagrees with the Executive's assessment: to overturn a certification directly, Congress would need to pass a joint resolution, likely over a presidential veto. Courts are unlikely to provide relief because they will be reluctant to arbitrate interbranch disputes over whether the Executive's characterizations are accurate. (24) As an example of this judicial reluctance, Chinen points to Crockett v. Reagan, (25) where twenty-nine members of Congress sued President Reagan and other officials for providing military assistance to El Salvador's anti-communist government. (26) This military assistance had been conditioned upon the President making certifications as to El Salvador's human rights progress. (27) President Reagan made these certifications, but their accuracy was dubious--members of Congress characterized them as "akin to calling night day or a duck an eagle." (28) The congressional plaintiffs submitted "voluminous" documentation of human rights abuses and asked the court to independently examine the accuracy of the President's certifications. The court declined to do so, saying that "[w]hatever infirmities the President's certifications may or may not suffer," the plaintiffs' dispute was with their fellow legislators who have accepted the certifications. (29) Because certification requirements lack strong legislative or judicial enforcement mechanisms, Chinen argues that "the President need only give colorable arguments to justify a particular certification." (30) Peter Quint makes a similar point, citing the El Salvador certifications to show that while certification "appears to be a mandatory device, it is actually hortatory in nature because the Executive's certification is ordinarily not subjected to effective review." (31)

      Other scholars also rely on the El Salvador certifications in arguing that the objective fact-finding demanded by a certification will yield to the Executive's policy preferences. Scott Horton and Randy Sellier assert that though the Salva-doran government was not actually making the progress required by the certification requirements (and indeed was complicit in human rights abuses), President Reagan was committed to supporting the anti-communist government and so made the certifications anyway. (32) They conclude that the certifications were little more than parchment barriers: "[R]egardless of the factual situation in El Salvador, it is difficult to imagine the President abandoning his policy because of a congressionally created certification process. He will simply go through the formality of filing the required papers...." (33) Amy S. Griffin also casts a critical eye on certification requirements based on the El Salvadoran experience, concluding that while the certifications were meant to be "purely factual determinations," in reality they would be shaped by the...