Closing Guantanamo: the legal and policy issues.

Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law - Discussion

This panel was convened at 1:15 p.m. on Thursday, March 26, by its moderator, Robert Chesney of Wake Forest University School of Law and University of Texas School of Law, who introduced the panelists: David W. Glazier of Loyola (Los Angeles) Law School; Joanne Mariner of Human Rights Watch; Deborah Pearlstein of Princeton University; and Glenn M. Sulmasy of the U.S. Coast Guard Academy.

INTRODUCTORY REMARKS BY ROBERT CHESNEY *

Good afternoon. This is the Guantanamo closure panel, or, rather, one of the Guantanamo closure panels. I'm Bobby Chesney. I'm from Wake Forest University School of Law and the University of Texas School of Law.

We have a terrific set of panelists to discuss these issues. I want to say a few words at the outset about the format we have elected to use. We are going to do a moderated dialogue. It is our mutual agreement that more light is shed in dialogue than in set piece presentations.

We've been batting about some of the key questions to ask. I will pose these questions, and I will invite the panelists to grapple with one another, to challenge one another, and to engage one another in as informal and a conversationalist style as they can. Even interruptions, if tactful enough, will be appropriate.

Let me say just a few words by way of introduction on the topic generally. I had originally planned to say a whole bunch of things, laying the groundwork and giving us a common foundation from which to proceed. Obviously, that could take the rest of the conference and certainly take our full hour.

Suffice to say that there is a new administration. The new administration has issued executive orders speaking directly to our topic. We have one task force that is considering how to proceed from here with respect to each of the detainees still at Guantanamo. A separate task force is charged with dealing with detainee and related policies from a longer-term perspective, and much is yet to be determined on that front.

In the interim, the press of the litigation calendar and the press of the docket in many cases continue to compel the new administration to take positions on legal policy matters relating to detention and Guantanamo. The most recent example would be the filing, on the Friday before last before Judge Bates, in which the administration defined the range of scenarios in which military detention vis-a-vis Guantanamo will be defended. It is similar in many respects to the prior definition. Perhaps the most notable difference concerns "support" as a ground for detention. Now, support must be "substantial" to justify detention. I'll be interested in heating the panelists' thoughts on whether we've really changed all that much otherwise.

Speaking of the panelists, to my immediate left we have Dave Glazier from Loyola Law School in Los Angeles, a former Navy Surface Warfare Officer, a 2004 graduate of the University of Virginia. If you research or write in the areas relating to military commissions, there is no way you haven't come across Dave's terrific articles.

Next, Deborah Pearlstein of the Woodrow Wilson School for Public and International Affairs and the Law and Public Affairs Program at Princeton. Deborah is a distinguished graduate of Harvard Law School, a former Harvard Law Review clerk, and was the founding director of the Law and Security Program at Human Rights First, where she led the organization's efforts in research, litigation, and advocacy relating to detention and interrogation operations.

To Deborah's left sits Joanne Mariner, director of Human Rights Watch's Terrorism and Counterterrorism Program. Joanne is also an expert on counterterrorism law and policy. As I suspect everyone in this room knows, she has followed developments at Guantanamo very closely and has conducted extensive research in this area, especially relating to rendition and "black site" prisons.

And to the extreme left from here, though not necessarily from his own perspective-Glenn Sulmasy from the Law Faculty of the U.S. Coast Guard Academy. Glenn writes and speaks extensively on detainee issues and particularly about the possibility of creating national security courts. I am very pleased to learn that Oxford University Press is publishing a forthcoming book by Glenn that you should all run out and buy once it's available, The National Security Court System: A Natural Evolution of Justice in an Age of Terror.

Now, enough about us, let's get to the ideas and the substance, beginning with this thought: the President has made clear that Guantanamo must be closed in 2009. That's the easy part. The hard part is determining how exactly to do that and what set of results, or perhaps what single result, is sufficient to dispense with the people who are already there.

David, let me start with you.

* Professor, Wake Forest University School of Law and University of Texas School of Law.

CLOSING GUANTANAMO: THE LAW OF WAR AS A PARTIAL SOLUTION

President Obama sent a strong signal that a new era had begun with his executive orders of January 22, 2009, directing a comprehensive review of detainee policies and the closure of Guantanamo within one year. Critics of the Bush administration's policies would have liked to see even faster action, but crafting a sound policy meeting legitimate national security needs while comporting with the rule of law is a challenging undertaking. Several options are commonly proposed for dealing with the current Guantanamo population, including release, transfer to third countries, and criminal prosecution. While President Bush's so-called "war on terror" was overbroad and lacked coherent grounding in international law, the law of war contains authority that can validly be invoked as a complement to existing criminal law in dealing with problematic cases.

Clearly the first step, as the President's orders direct, must be a careful review of all information the Government has on each detainee. Previous reviews, including the Combatant Status Review Tribunals (CSRTs) and even military commission prosecution decisions, have been based on fragmentary information and thus suspect. Only by assembling all data held by the military, intelligence, and law enforcement communities can accurate assessments be made of the threat posed by each individual detainee and options for their disposition.

Until this assessment is complete, we can do little more than guess the number of detainees who must be dealt with on a long-term basis. Although the Guantanamo population has been reduced by two-thirds from its peak of almost 800, more than 60 of the roughly 245 men still held in early 2009 were already approved for release. The actual number of low-threat detainees will almost certainly rise as more complete information is compiled. The Department of Defense has long asserted that it envisioned trying no more than sixty to eighty detainees. The cases of David Hicks and Salim Hamdan demonstrate that even some marked for trial are very marginal threats. So it seems likely that the number objectively found to merit continued detention will be even less than the numbers planned for military trial. For the majority of those still held, the proper disposition is likely going to be to release them as quickly as acceptable destinations can be identified where they can be sent without risk of additional maltreatment.

Nevertheless, some individuals, whether a few dozen or a few score, will be legitimately found to pose real danger to the United States. Identifying them is only the start, however. The larger challenge is to ground their continued detention within the rule of law. While one hopes that the Obama administration will follow the law for its own sake, the Supreme Court' s Boumediene decision places the courts in a position to ensure this happens via habeas review.

One proposed measure is transferring detainees to third countries, but this option makes sense only in the exceptional case where a detainee is wanted for criminal conduct abroad in a country that satisfies international fair trial standards. Otherwise, such transfers would be shams, intended either to let the receiving country release the detainee while the United States avoids admitting a mistake or an effort to have detainees unlawfully confined abroad. As the victim of 9/11, which is generally acknowledged as constituting an armed attack, the United States can invoke authority under the law of war which other nations cannot. So, from a legal perspective, any general transfer of detainees to other countries is highly suspect absent actual liability to criminal trial in the receiving state.

Wherever practicable, the preferred disposition of suspected terrorist detainees should mirror regular federal criminal trials. Detention based on convictions for statutory offenses after trials providing the full panoply of constitutional and statutory due process rights will enjoy the greatest degree of domestic and international legitimacy. There is no reasonable doubt that federal trials meet internationally-mandated procedural standards, including specifically those in the International Covenant on Civil and Political Rights. And since American service personnel are subject to the concurrent jurisdiction of civilian courts, federal trials should be permissible even on the remote chance that a detainee was somehow entitled to the protections of the Third Geneva Convention (Geneva III) on prisoners of war (PW).

Federal criminal trials have several practical advantages over traditional law of war detention. First, a detainee who has been the subject of a criminal conviction is not entitled to release at the end of hostilities but may remain incarcerated until the completion of their sentence. Second, a criminal conviction justifies confinement of a detainee under actual penal conditions, whereas the law of war mandates that persons detained preventively be kept in communal camp conditions with extensive opportunities for recreation...

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