The Administration Pushes Back on Guantanamo–Sort of.

President Obama’s counter-terrorism adviser John O. Brennan has delivered the most forceful defense in recent memory of the Obama administration’s national security policies. Brennan spoke last Friday at a symposium in New York sponsored by NYU’s Brennan Center for Justice and The Atlantic Philanthropies (Disclosure: I was formerly a litigation director at the Brennan Center). The text of Brennan’s remarks is available here, Dafna Linzer’s coverage of the event for Pro Publica here, and Ben Smith’s coverage for Politico here).

It was encouraging to see someone from the administration debunk–forcefully and publicly–legislative efforts to prevent the president from using Article III courts to prosecute suspected terrorists. Congress has already blocked the Obama administration from using Defense Department funds to transfer Guantanamo detainees to the U.S., even for criminal prosecution. Newly proposed legislation goes further.  House and Senate bills would each require the president to detain suspected terrorists in military custody, absent a waiver from the Secretary of Defense.  Such a radical and unprecedented militarization of counter-terrorism policy has provoked opposition even from supporters of preventive detention like Ben Wittes (see Wittes here on the Senate bill and here on the House bill).

It also was encouraging to see Brennan make clear that the U.S. government’s policy is to prosecute terrorist suspects arrested in the United States exclusively through the federal criminal justice system–an executive policy determination that would be undermined by current ill-advised legislative proposals. Brennan all but acknowledged that the prior military detention of individuals arrested in the United States– Jose Padilla and Ali al-Marri (I represented the latter)–were illegal. Either way, Brennan recognized, those detentions proved costly and were a mistake not to be repeated. Congress should recognize this too, rather than trying to block Article III prosecutions.

Brennan did not suggest any deviation from some troubling aspects of administration’s current policy, including the use of military commissions to prosecute individuals arrested outside the United States (and far from any battlefield) and the indefinite detention of terrorism suspects. (Query what Brennan meant in stating that the commissions “were not limited to Guantanamo”–and, in particular, whether he merely meant to assert the right to use commissions for Guantanamo detainees if they are brought to the United States, or using them elsewhere, such as Bagram). In light of Obama’s prior statements, as well as his recent executive order, I don’t expect any change in these broader policies in the foreseeable future.

An important question looming on the horizon is how the administration will respond to new legislative proposals that target habeas corpus.

In Boumediene v. Bush, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus. For the last three years, that habeas process has been unfolding in the lower courts. Congress can no longer simply amend the habeas statute to eliminate the detainees’ right to the writ, as it did in the Detainee Treatment Act of 2005 and Military Commissions Act of 2006. Recently proposed legislation, however, would accomplish the same purpose by significantly weakening habeas as a check against illegal detention without formally repealing it.

Take the Senate bill introduced by Lindsey Graham (R-SC), entitled the “Detention of Unprivileged Enemy Belligerents Act” . The bill expands the 2001 Authorization for Use of Military Force (AUMF) in significant respects, including by specifically authorizing detention (which the AUMF did not), excluding any geographic limit on the president’s detention power (which the AUMF did not), and extending the detention authority to “associated forces” without any nexus to the 9/11 attacks (whereas the AUMF had confined the president’s authority to use force to those responsible for the 9/11 attacks).  See Steve Vladeck’s excellent analysis of a prior version of the bill here.

The Graham bill also significantly reduces the government’s evidentiary burden–to a mere showing of probable cause–and creates a series of rebuttable presumptions in favor of detention. Thus, according to the legislation, any time a petitioner attended “a military-style training camp or guest-house of the Taliban, al Qaeda, or associated forces,” he will be presumed detainable. These procedures represent a significant departure from the ongoing habeas litigation, where courts have required the government to justify detention under an already deferential “preponderance of the evidence” standard and where, consistent with Boumediene’s instruction, district courts have exercised their independent judgment as to how much weight to accord various factors, such as prior attendance at a guest house or training camp, in determining whether a prisoner is “part of” al Qaeda under the AUMF. Although a series of D.C. Circuit opinions have restricted district judge’s authority to reject the government’s assertions, the Graham bill goes much further in limiting their ability to exercise meaningful, independent review over the Guantanamo detentions.

Obama will likely hold firm on his authority to use Article III courts to prosecute terrorism suspects. My concern is that he will yield to some or all of the proposed habeas-limiting measures in exchange for lawmakers’ easing the current restrictions on closing Guantanamo (especially, the ban on transferring Guantanamo prisoners to the U.S. even for continued confinement). The best hope against such a deal is probably not the administration’s commitment to habeas review (which I suspect is not terribly deep), but its recognition that gutting Boumediene is the surest way to wake a dormant Supreme Court and prompt it to intervene in Guantanamo once more.

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