My Testimony on Detention/Prosecution Policy for Tomorrow's HASC Hearing

On Tuesday morning, the House Armed Services Committee is holding a hearing titled "Ten Years After the 2001 AUMF: Current Status of Legal Authorities, Detention, and Prosecution in the War on Terror."  I'm not sure if it will be webcast, though I hope it will.  The other witnesses include former Attorney General Mike Mukasey, former DoD Deputy General Counsel Daniel Dell'Orto, and former Deputy Assistant Attorney General Steven Engel.  We are likely to spend a lot of time talking about the Warsame case, the provisions in the House and Senate versions of the National Defense Authorization Act for FY12 (including section 1034 on the AUMF and section 1039 on transfer restrictions), the pros and cons of military commissions trials in comparison to civilian trials, and so forth. The various prepared statements are not yet posted to the committee website, but should be shortly.  In the meantime, mine is here, and the opening lines are as follows:

Chairman McKeon, ranking member Smith, and members of the committee, thank you for the opportunity to testify today. In the pages that follow I use a close review of the Warsame case to illustrate three points:

1. Civilian criminal prosecution in some instances is the most effective tool for ensuring the long-term detention of a terrorism suspect; Congress should not take this tool out of the President’s hands. 2. Other options that are lawful in certain circumstances include trial by military commission or the use of military detention consistent with the law of war—a position the administration already routinely defends in various legacy cases. In some contexts going forward, one or the other of these tools may be the most effective and appropriate long-term detention solution. When that is the case, the administration should be willing to use these tools, even if Guantanamo as a practical matter is the only viable location where this can be done. Of course, the administration will be more likely to do so if Congress would remove the existing transfer constraints (which effectively make it impossible to remove persons from Guantanamo without a court order). 3. The question of how best to detain someone over the long-term and the question of how best to acquire intelligence from a captured person are two different matters, and the answer to one does not dictate the answer to the other. Selecting civilian criminal prosecution as the best tool for long-term detention in a particular case, for example, by no means obliges the government to treat a terrorism suspect as a run-of-the-mill criminal whose questioning is designed merely to obtain admissible evidence of guilt. In any event, which framework to employ at a given point in time is a question that should be resolved with nuanced, case-specific judgment informed by the views of professionals from across the relevant agencies and departments—not with a one-size-fits-all solution.

I anticipate that the other panelists will largely agree as to point two above, but that I may be the only one arguing points 1 and 3.  We shall see.  In any event, it is certain to be an interesting discussion, and when I get the chance I will provide a recap.