“Mission Creep” in NGO Demands?
In Law and the Long War, Ben described a cyclical process in which civil liberties and human rights NGOs would criticize the Bush administration’s detention standards and policies on GTMO, the Bush administration (under pressure from various fronts) would reform detention policy to move toward the NGO position, and then NGO demands would ratchet up their demands. “[I]n a kind of mission creep,” Ben said, “the human rights groups refused to take ‘yes’ for an answer.” Ben added: “Between 2002 and 2007, the b
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In Law and the Long War, Ben described a cyclical process in which civil liberties and human rights NGOs would criticize the Bush administration’s detention standards and policies on GTMO, the Bush administration (under pressure from various fronts) would reform detention policy to move toward the NGO position, and then NGO demands would ratchet up their demands. “[I]n a kind of mission creep,” Ben said, “the human rights groups refused to take ‘yes’ for an answer.” Ben added: “Between 2002 and 2007, the baseline of legitimacy for detentions has shifted for the human rights groups from rigorous compliance with the Geneva Conventions to criminal charges and extensive judicial involvement.” Since 2007, we have achieved extensive judicial involvement, as courts have extended full habeas corpus review to GTMO. Any remaining demand for criminal charges (i.e. for elimination of military detention) flies in the face of the judgment of two administrations, large bipartisan majorities in Congress, the lower federal courts, and the American people.
I was reminded of Ben’s analysis when Kate Martin sent in her post that linked to an extraordinary document from 2002 that listed the objections to military commissions by major NGOs, including Alliance for Justice, ACLU, CCR, Human Rights Watch, and the Lawyers Committee for Human Rights (now Human Rights First). These and other NGOs listed nine “major deficiencies” in commissions 2002, all of which have been entirely or significantly addressed. After reading the 2002 objections, consider:
- Unlawful Scope and Jurisdiction. There is now jurisdiction by statute. The scope of jurisdiction over persons is much tighter. And while contestation remains over the question whether a few crimes (most notably, material support and conspiracy) are offenses recognized by the laws of war, that question is subject to review and resolution by Article III courts, including the Supreme Court.
- Lack of Independence and Impartiality. All of these concerns have been addressed, and military commissions enjoy essentially the same protections against command influence as courts martial.
- No Judicial Review. Full review is now available in United States Court of Military Commission Review, then the D.C. Circuit, and finally the Supreme Court. (Here is military law expert Gene Fidell complaining that this is too much appellate process.)
- Secret Evidence: Major reforms have taken place here as well. Commissions now use virtually the same rules for dealing with classified information – a version of the Classified Information Procedures Act – as is available in civilian court.
- Denial of Effective Assistance of Counsel: There has been change in this context as well, under both the MCA of 2006 and the MCA of 2009. There are continuing disputes about legal mail, but that issue is before the military commission judge and is ultimately subject to Article III review. Nobody who has read Lawfare’s coverage of military commission proceedings can doubt that detainees are receiving first-rate counsel from well-staffed defense teams.
- Indefinite Detention: Military detention at GTMO is now expressly authorized by Congress, has been approved by federal courts in the D.C. Circuit, and is subject to Supreme Court review.
- Death Penalty: The NGOs appear to oppose the death penalty in all contexts, but in any event military commissions, in Rule 1004, now use Rule for Court-Martial 1004, which was upheld (on other grounds) as lawful by the Supreme Court in Loving.
- Lack of congressional authorization: Congress has since 2002 twice authorized military commissions – in the MCA of 2006, the MCA of 2009. And it reaffirmed its approval of military commissions (and its preference for commissions over civilian trials) in the NDAA of 2012.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.