Relitigating Guantánamo: A Modest Quibble with John’s Post on Abu Khattala

It’s refreshing to find voices of reason in Ben’s, Jack’s, and John’s posts on the Abu Khattala capture. Jack’s post, in particular, provides a lucid exposition of what any number of congressional Republicans should not have needed to have explained to them: That the absence of a connection to al Qaeda categorically resolves in the negative, as a matter of law, any question whether Khattala could be sent to Guantánamo and/or tried by a military commission. But I was a bit surprised to find in John’s post an effort to re-litigate the objections of unnamed “civil liberties groups” to detentions at Guantánamo:

[C]ivil liberties groups have been disingenuous in suggesting that every individual detained or turned over to the U.S. military in Afghanistan in 2001/2002 could and should have been prosecuted in federal court, or else released. . . . I wish civil liberties groups would finally put ideology and their distaste for the Bush Administration aside and concede that federal courts could not have been used to prosecute many of the detainees in Guantanamo.  Do they really think that Taliban military commanders (who were released earlier this month) should have been prosecuted under federal criminal law in federal court, or otherwise released?   Seriously?

First, I don’t get how this has anything to do with Abu Khattala—who, as Jack rightly explains, could not be sent to Guantánamo. Indeed, Khattala presents exactly the opposite case from those John is invoking, and so using his case to relitigate Guantánamo only reinforces, rather than undermines, the very narrative to which John, like Ben and Jack, claims he is objecting. Second, as John well knows, plenty of folks on the left, including some of these unnamed “civil liberties groups,” know full well that many of the key U.S. criminal counterterrorism laws didn’t apply extraterritorially on September 11, and have publicly acknowledged as much. And so it’s clearly true that some of the Guantánamo detainees could not have been tried in civilian courts at the time of their capture. But some of the detainees could have been tried in civilian court, either because there were some relevant statutes that did already apply extraterritorially at the time, or because they were picked up after Congress, beginning in the USA PATRIOT Act of 2001 (enacted right at the outset of combat operations in Afghanistan), began to expand the territorial scope of these statutes. In at least some of those cases, the fact that these detainees weren’t tried in civilian court likely has a lot more to do with the paucity of admissible evidence against them—either because of a general lack of evidence against them (which John sort of concedes—“the U.S. military was not engaged in federal evidence collection when the individuals were detained”), or because what evidence did exist was tainted by torture. And so it’s not disingenuous to suggest that some, if not many, of the detainees could have been tried in civilian court—at least, if admissible evidence supported such a prosecution. Instead, John’s post makes it sounds like the only objections to Guantánamo were based on the availability of civilian courts—and that these same civil liberties groups, had they accepted the unavailability of civilian courts, would not have had other objections to Guantánamo. Of course, that’s just wrong. Like me, John may not agree with the view that international law provides no long-term military detention authority in a non-international armed conflict (or that, even if authority exists, such detentions are unwise as a matter of policy), but it’s a view held by at least some civil liberties and human rights groups, and one that doesn’t in any way turn on the availability vel non of civilian criminal prosecutions. From that perspective, it isn’t disingenuous at all to suggest that “every individual detained or turned over to the U.S. military in Afghanistan in 2001/2002 could and should have been prosecuted in federal court, or else released.” It’s just a view of the law with which John (and I) disagree.