Relitigating Guantánamo in the Context of Abu Khattala: A Different View

As I read Ben’s, Jack’s, John’s Steve’s and Wells’s posts, I come away with the impression that there is unanimous agreement at Lawfare that Abu Khattala (a) cannot be sent to Guantánamo for further interrogation and (b) must be tried in the civil justice system.  As a policy matter, they may be right in this particular case, but I respectfully disagree if they are asserting that these conclusions are legally compelled. I recognize that some of my disagreement may be attributed to a different understanding of the facts.  So, let me stipulate the following facts:

• Abu Khattala was seized by the USG in the exercise of self-defense.  (According to UN Ambassador Samantha Power’s letterto the UNSC (thanks to Charlie Savage in the NY Times), Abu Khattala is a senior leader of the Libyan militant group Ansar alSharia-Benghazi in Libya, was a key figure in the attack on the U. S. facilities in Benghazi and continued to plan further attacks against U. S. persons.

• The seizure of Abu Khattala was part of an armed conflict.  (I have not seen any definitive assertions that the USG has taken this position, but given the military assets involved (Navy SEALs and Delta Force), I would assume that the participants assumed that they were operating under the law of war and not the law of human rights.)

• The authority to seize Abu Khattala was not derived from any Congressional authorization for the use of force (i.e., authority outside criminal laws).  (Fox News was reporting Wednesday night that Al Qaeda elements were planning further attacks in Libya, but we will not get into the question here of whether the 2001 AUMF provides authority, particularly since, as Jack reported in hispost on this subject, the Chairman of the JCS has denied that they were relying on the 2001 AUMF in their pursuit of  Abu Khattala.)

• Likewise, his trial by a military commission is not authorized by the Military Commission Act of 2009.  (Again, I accept, for purposes of this post, that Jack is right that Abu Khattala does not come within the definition of “unprivileged enemy combatant” in the MCA.)

I believe, as a legal matter:

• Abu Khattala may be detained under the law of war, outside the “public safety” exception to Miranda, under the President’s executive and commander-in-chief authority to use force in defending the vital national interests of the United States.

• Circumstances triggering the individual right of self-defense in the international law context would also trigger the right of self-defense in the domestic, Constitutional context.
• The authority to use force includes the authority to detain combatants.

• As a combatant, Abu Khattala may be tried by an existing military commission that has jurisdiction over whatever offenses he is charged with (if one exists) or a specially constituted commission meeting the standards of our military justice system, provided the USG can demonstrate that “some practical need explains deviations from court-martial practice.”  See Justice Stevens’ opinion in Hamdan v. Rumsfeld, 548 U.S. at 632-633.  Given the hostility of the majority inHamdan to the remaining sliver of Presidential authority to convene military commissions not authorized by Congress, recognized by Ex Parte Quirin, 317 U. S. 1 (1942), this would be a tall order, but I think it is important to acknowledge that this authority does exist, at least in theory.

• Neither detention at Guantánamo for interrogation nor eligibility for trial by a military commission rules out the possibility of trial in the civil system.

Notwithstanding my legal conclusions (and this may be all that the Lawfare posters are saying), it is far from clear that, as a policy matter, it is worth the fuss to use a military commission, even if one were currently available.  Furthermore, with detention in Guantánamo there are serious risks, including, I would assume, the inadmissibility of some information gleaned through interrogation without Abu Khattala having a lawyer present.  But, there are also risks in the civil justice system.   Taking a hard look at using a military commission does not necessarily reflect hostility towards the civil system or a political motive.   And we should certainly not let a fetish with closing Guantánamo cause us to rule out its use, particularly for interrogation purposes. Edwin Williamson is Of Counsel at Sullivan & Cromwell LLP.  He served as Legal Adviser at the U.S. State Department from 1990 to 1993.