Senate NDAA Thought #2

My second thought about the Senate NDAA detainee language concerns Section 1036, which establishes procedures for the status determinations of those held as enemy belligerents for "long-term detention" anywhere in the world. As I argued before, this provision is a bit of a puzzle. There's a germ of a very good idea here, but the bill goes about it the wrong way, in my opinion. The key piece of background information to understand this section is that other parts of the bill, which I discussed earlier today, require military detention for Al Qaeda suspects (a terrible idea) and specify "long-term detention" as one of the possible "dispositions" for those detainees. So Section 1036 is designed to create a process for the handling of those detainees for whom the government determines that long-term detention is the appropriate disposition. The bill does not define "long term," however--so how long someone would have to be detained before he was entitled to the process described here is left up to the administration to decide. But the basic point of the provision is a reasonable one (though the mandatory detention that underlies it is not). It is, in fact, a point I have been arguing for some time: There ought to be a standard set of procedures and rights for people whom the U.S. military means to hold long-term in military detention as dangerous enemies. Unfortunately, as I say, I think the proposal goes about this in a wrongheaded fashion--and it fails to take account of the process that already exists for many, though not all, long-term detainees: habeas corpus. The provision reads in its entirety:

SEC. 1036. PROCEDURES FOR STATUS DETERMINATION OF UNPRIVILEGED ENEMY BELLIGERENTS.

(a) In General- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) for purposes of section 1031.

(b) Elements of Procedures- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) Report on Modification of Procedures- The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.

(d) Appropriate Committees of Congress Defined- In this section, the term 'appropriate committees of Congress' means--

(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

As a practical matter, this provision would mean a significant upgrade in the rights and process afforded to those long-term detainees held at Bagram--giving them a hearing before a military judge and representation by counsel. It would thus create a very strange, multi-tiered system for determining combatant status. Those at Guantanamo are having their status determined in habeas proceedings. Those at Bagram who are slated for something less than long-term detention would continue to get Detainee Review Board hearings--which do not involve lawyers and do not involve military judges--and they get no habeas. Meanwhile those slated for long-term detention at Bagram, or slated for long-term detention after being captured in the future and held anywhere other than Guantanamo or domestically, would get a Section 1036 hearing with a military lawyer and a military judge--but no habeas. And those slated for long-term detention and held domestically or at Guantanamo--and remember that the bill elsewhere requires the military detention of lots of terrorist suspects detained domestically, so this would probably not be a null-set--would get both a Section 1036 hearing and habeas. This seems needlessly complicated to me and would actually exacerbate the current problem of treating similarly situated detainees differently as a result of accidents of geography. As I say, I am sympathetic to the idea of creating a standardized set of procedures for status determinations in cases of long-term detention. I would, however, do it a bit differently. I explained my own preference for how to do this back in January. Guantanamo should, in my view, be the detention site for long-term detainees, all of whom should have the benefit of the processes that already exist there:

Guantanamo today is not the Guantanamo of the early Bush administration—a site chosen for its lying beyond the reach of the U.S. courts. As I point out in my new book on detention policy, Detention and Denial: The Case for Candor After Guantanamo, it is now a unique detention site for almost the opposite reason. Alone among facilities used by the military to detain enemy forces in the war on terror, detentions at Guantanamo are supervised by the federal courts in probing habeas corpus cases. Detainees there, unlike at any other detention facility, have access to lawyers. Their cases are followed closely by the press, and many hundreds of journalists have been to Guantanamo. What’s more, Obama is reportedly preparing to issue an executive order creating a significant new review process for those detainees who have lost their habeas cases. In other words, while everyone—including Obama—was calling for Guantanamo’s closure, it evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used. While it isn’t the system I would build, it is a system of transparency and review. And that is exactly what Obama has said so eloquently that he wants. Ironically, the big beef against Guantanamo these days is its reputation, and Obama is contributing to that bad reputation whenever he insists that closing the facility remains a priority. Instead of holding up the changes there as the model of what long-term American counterterrorism detention will and should look like, he delegitimizes the one facility that represents what he purports to want—not to mention the one facility for whose preservation Congress has developed a peculiar fetish. Instead of fecklessly continuing to argue for the closure of Guantanamo, Obama should announce . . . that since Congress has made closure impossible, he is committing himself to making Guantanamo a symbol not of excess, not of lawlessness and evasion of judicial review, but of detention under the rule of law. Huge strides, he can honestly say, have been made in this direction both in the last administration and in his, and with his promulgation of his executive order creating a review mechanism, he will make further strides. In addition, he should commit himself to expanding Guantanamo by bringing to it and subjecting to its processes all counterterrorism detainees captured in the future or held currently anywhere in the world today whom he means to hold in military detention for a protracted period of time. This will ensure that all detainees whom the United States wishes to hold because of something more than a role in local theater operations receive the benefit of the due process norms that have been established at Guantanamo. In exchange, he should ask Congress to ratify in statute the system that has emerged at Guantanamo and lift the restrictions it has imposed both on transfers and on federal court trials.

This would, of course, not solve the problem of how to define "long-term." But it would create a far simpler arrangement for status determinations. Detainees not slated for long-term detention would be held in theater and subject to, in Afghanistan anyway, DRB hearings. Detainees anywhere in the world slated for long-term detention would be brought to Guantanamo and be allowed to challenge their detentions in federal court--and, if they lost there, would be able to argue on a regular basis for discretionary release. How should we define long-term? Here's my suggestion: A long-term detainee should be defined, either statutorily or as a policy matter, as any lawfully-detained detainee who, the government concludes: (a) cannot be released without undo risk to national security, (b) against whom criminal prosecution is not practicable, (c) who cannot be transferred to any foreign government in a fashion that both ensures the detainee's humane treatment and protects national security, and (d) for whom the government can envision no immediate prospect of change in conditions (a)-(c). In my view, rather than adding an additional layer of complexity only an already-too-complicated status-determination system, Congress should consider requiring that Guantanamo (which is not closing) and its processes (which represent a kind of gold standard in detainee status determination) should be the site and the system for such people.