Feldman: Detainee Law

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Noah Feldman, a CFR adjunct senior fellow, says a bill approved by Congress and signed into law by President Bush establishing military commissions to try terrorist suspects shifts the debate “from being a separation-of-powers issue to being more purely a human rights issue.” He expects a number of legal challenges to the new law. A professor of law at New York University, Feldman also says the law endangers U.S. personnel abroad. “Our interpretation of Common Article Three,” he says, “you can now expect, will be used against us when our personnel—CIA agents and out-of-uniform Special Forces—are captured.”

This new law establishing military commissions seems to bypass the courts. Do you expect there to be a lot of legal challenges?

Yes. The law does many different things and one of those is that it drastically limits the forms of review the courts are entitled to engage in. But there will still be challenges both to the provision prohibiting access to the courts and also challenges brought under the terms of the law itself. So there’s plenty of legal wrangling ahead of us.

But prisoners can’t bring up challenges under, say, habeas corpus or even under the Geneva Conventions, right?

Correct. Prisoners, according to the law, who are non U.S. citizens and are detained outside the U.S.—including in Guantanamo Bay—are denied habeas corpus. They are also denied the right to claim the Geneva Conventions confer certain rights on them.  Detainees tried before the military commissions are permitted to challenge the way their trials were conducted in the DC Circuit Court of Appeals after those trials are completed.

Some complain the law gives the president too much discretion and makes him the arbiter of who qualifies under this new law as an “illegal combatant.” Is that the main complaint?

I think there’s a pretty broad range of complaints on a couple of different fronts. One concern that many human rights groups have already expressed is that it’s up to the president to designate who will be tried in one of these military tribunals, but it was always the case that there was going to be some role for the president. Another concern that bothers the human rights community is a section that says the president is the one who is empowered to interpret and apply the Geneva Conventions.

But the law does not redefine U.S. obligations under the Geneva Conventions, right?

Well, the law doesn’t expressly say we are ignoring our obligations to the Geneva Conventions. But it does redefine what will be considered a grave violation of the conventions punishable by law. Section Six of the law specifies that certain acts are a grave violation of Common Article Three. Then, when it goes on to actually tell you what those violations are, it adopts definitions that are more permissive and less demanding than those proposed by other countries or independent commentators.

How does the law affect U.S. interrogators, especially CIA agents, abroad? Further, what does it say about torture?

It defines torture under Common Article Three and other prohibited actions like cruel and inhuman treatment in a way that is consistent with the earlier McCain amendment [2005 Detainee Treatment Act], which itself may be interpreted to permit some actions that ordinary observers or other countries might consider cruel and inhuman. That’s why, according to the president, the law allows the CIA to continue to do the things it has been doing that many people would consider cruel and inhuman and even torture.

A more precise formulation would be that the law chooses not to criminalize some of the techniques the CIA has reportedly been using. It’s a little different from saying that the law authorizes them to act this way. But what it does is that it offers a definition of the Geneva Conventions which doesn’t necessarily include the things that they were doing, even though other people would say that the correct interpretation as you’ve mentioned does.

And that’s obviously a way to prevent lawsuits right?

Not just lawsuits; they’re trying to prevent individual members of the U.S. government, including high government personnel, from ever being called on the carpet and actually put on trial for violations of the Geneva Conventions or war crimes.

Is the administration right that these “tough” techniques have made us safer and provide useful intelligence?

I think the greatest problem with that argument is we have only their word for it. The government tends to say, “Well, we of course can’t tell you what information we’ve gotten, nor can we tell you what techniques we’ve used because it’s all classified, but trust us. We’ve gotten useful things and we didn’t use techniques that are too terrible.” That is a double demand of trust.

What does this new law do to the Hamdan decision? Has that now been reversed, or is the case now thrown out of court?

Elements of the Hamdan decision are now overruled, but it covered a lot of different areas. Some of the things in this law are responses to parts of the Hamdan decision and some things can’t be reversed. [Salim Ahmed] Hamdan will probably now have a military commission trial pursuant to the legal requirements laid down in this law. After that, he will probably try to bring a challenge to it—maybe even beforehand—but technically speaking, this law can be read to bar him from challenging his trial until he has had it. He’ll definitely try. And he may or may not succeed. The courts will have to decide whether the provisions of the statute, which clearly make it unlawful for him to come back to the court again until after his trial, are in fact unconstitutional. They will also have to decide ultimately whether his trial followed procedures that are constitutional.

It sounds like only a small handful of high-level detainees will be brought before the military commission. If that’s the case, what happens to the 400 hundred others who are at Guantanamo Bay? If they’re not allowed to even file a writ for habeas corpus, what are the provisions for trying them?

This is a very serious concern. Under the terms of this act, if they have been subject to a CSRT, or Combat Status Review Tribunal, which I think most or perhaps all have been now, and are not being put on trial, this statute does not end their detention abroad. They will not be given an opportunity to file separate petitions in U.S. courts challenging the determination by that review tribunal.

So that means they’re sort of in legal limbo?

Yes, the statute authorizes, in effect, their indefinite detention.

Which means Guantanamo Bay will not be closed anytime soon.

Obviously, it’s within the power of the executive to release people. I am confident that there will be legal challenges to the effect that it’s unconstitutional just to detain people indefinitely in this way; and one way or another that claim will reach some court which may rule upon it. But it is important to note that it will no longer be possible to claim that Congress didn’t authorize this. Before, earlier decisions such as Hamdan turned on the claim, upheld by the courts, that Congress never intended or authorized these kinds of commissions. Now Congress has spoken. It has authorized the detentions and the commissions. So the claim will have to be that the Constitution prohibits these in some way. Regarding detention, that will be a difficult claim to make out insofar as POWs can always be held. But these guys are not exactly POWs, they’re something different. They are unlawful enemy combatants. POWs have to be returned at the end of hostilities, but there are no obvious set of hostilities for these guys. I think this is going to mean in the short term that the main pressure on the administration to let these people go is going to be political. I think that some of the detainees, it seems very likely, will be released and the administration has said they’d like to get rid of Guantanamo. In the meantime, until they decide to release those people and figure out where to send them, there’s not any obvious alternative solution provided under this statute.

How serious is the issue of habeas corpus and their not being allowed to challenge their own detention? Will this be overturned, or is it now the letter of the law?

It’s something that will definitely be challenged and the challenge will have to come in the form of a claim that this suspension of habeas corpus violates the Constitution—because, again, Congress appears to have been pretty clear about what they said. So that’s a pretty significant fact, but I think we can say with certainty that some attempts will be made to challenge this in the courts.

So we’re going to see more of this kind of back and forth between the Supreme Court, Congress, and the president?

I think we will. This is not the end of the game. So far, I would say the really important steps were the initial detentions, the Supreme Court’s demand for some sort of hearings; then the government’s attempt to craft some way to run these military commissions; then the Hamdan decision overturning some of the government’s plan. Now this statute is clearly an important chapter, but I don’t think that it’s the last chapter.

Talk to me about two long-term potential dangers that I see arising out of this law. One is the complaint we heard from Sen. John McCain (R-AZ) and others that this could put our own soldiers abroad in danger because they see the U.S. as shirking their duties under the Geneva Conventions.

I think the view of the military when they were consulted in the process of this drafting was consistent—and they were the ones with the most reason to be concerned because they’re the ones out there in danger of being captured. The view of the military on the whole was that this law would have the effect of endangering us abroad, particularly in respect to the question of cruel and inhuman treatment, as defined by Common Article Three. Our interpretation of Common Article Three, you can now expect, may be used against us when our personnel, including CIA agents and out-of-uniform Special Forces, are captured. We are vulnerable to the possibility of the detention of some of our personnel where they can be designated potentially as unlawful combatants.

Secondly, does this set a dangerous precedent, that is, the president circumventing the Supreme Court on this issue? Is this a case of too much executive authority?

What was powerful about the decision in Hamdan is that it made the point very clearly that the president could not proceed without specific authorization by Congress. That decision, as written, basically amounted to a statement that unless Congress was going to authorize these commissions, the president couldn’t create them. Now Congress has authorized them, as well as the other detentions. The question for the courts will be whether even when Congress authorizes it, it is constitutionally permissible for these things to happen? But I think the issue will now move from an issue of executive power to the question of what can the U.S. government as a whole do to people it has detained. It’s going to shift from being a separation-of-powers issue to being more purely a human rights issue. Until now it was fair to say this was, in legal terms, largely about executive power.

Do you think this law may damage U.S. moral authority abroad?

Internationally I think it was already damaged. But I think that before, the world could say, “Well, this is President Bush, but the American people will repudiate these practices.” Now that Congress has acted careful observers from abroad will be able to say, “This is what the U.S. does. The U.S. believes this is appropriate.”

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