An Exchange with Daphne Eviatar--And a Challenge

Benjamin Wittes
Friday, September 3, 2010, 2:29 PM
A week ago, Human Rights First activist Daphne Eviatar took me and Sen. Lindsey Graham to task as defenders of torture. She didn’t quite put it that way. Her argument went, rather, along these lines: The government, as a report by Propublica’s Chisun Lee details, has lost a considerable number of Guantanamo habeas cases because of allegations of coerced statements.

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A week ago, Human Rights First activist Daphne Eviatar took me and Sen. Lindsey Graham to task as defenders of torture. She didn’t quite put it that way. Her argument went, rather, along these lines: The government, as a report by Propublica’s Chisun Lee details, has lost a considerable number of Guantanamo habeas cases because of allegations of coerced statements. And “Unfortunately, those orders have led some critics of the administration”—including, it seems, Sen. Graham and me—“to argue that we need more expansive detention laws so the government doesn't have to let so many suspects go.” Eviatar cited Habeas Works, “a report that Human Rights First released with The Constitution Project in June” that shows that “the courts deciding these habeas cases are doing the right thing: they're weighing the evidence, deciding the facts and applying the law. No new laws are needed. On the contrary, a new detention law designed to help the government win more cases in the absence of reliable evidence would only tarnish the reputation of the U.S. justice system, which in these cases is doing itself proud.”
I was, I confess, a bit bewildered by this post. Leave aside the fact that I have never considered myself a particular administration critic; the post seemed to me to capture several interpretive misunderstandings and maladaptive judgments that are today widely accepted in the human rights community. I wrote Eviatar a note, attempting to flesh these points out. In relevant part, it read:

First, it is quite incorrect to say that I have concluded based on the rate of detainee victory in the district court that we need more expansive detention laws. My arguments about the need for detention laws, first off, long predate any of the district court's rulings. Second, my argument is not that we need more expansive detention law. As you and I have discussed in the past, I believe that we need clear detention law that may or may not prove more expansive than current law as it is developing in the court system. The question of the source of the law and the question of its content and scope are distinct, and--generally speaking--I would much prefer clear, narrow legislative detention authority to broad and vague judicially-created authority.

Second, on a related note, it is also wrong to suggest that I believe we should have wider latitude to introduce coerced evidence in these habeas cases. Sen. Graham's proposal--which captures fairly closely my view of the appropriate rule--explicitly excludes all material derived from torture and CID and requires as a condition of admissibility that statements be given voluntarily. This is precisely the same standard that all of the judges who have considered the matter have used. The point on which Sen. Graham's bill breaks some new ground lies only in the question of what voluntariness means in a context of long-term military detention (a context very different from the criminal case law from which the concept emerged). On this point, a matter on which the district judges have disagreed significantly, Graham's proposal sides with Judge Hogan (who presumes voluntary statements given in CSRTs and ARBs in the absence of evidence of coercion) and Judge Kollar-Kotelly (who presumes voluntary statements given in [Army] Field Manual-compliant interrogation) and [against] some other judges who have excluded such statements.

Third, both before and since the publication of Habeas Works, the D.C. Circuit has made clear that it is likely to take positions far more extreme than those that people like me urge as a legislative matter. On a range of issues, the Circuit is far outflanking us based on the very current law you so aggressively defend. Are you really so confident that when the Circuit considers the question of allegedly coerced evidence . . . that the result will be law more to your liking? And will you stand by your insistence that "habeas works" when it turns out to work to create a regime less protective of detainees than the rules advocated by "administration critics" like me?

Eviatar responded, in relevant part, as follows:

We obviously have a fundamental disagreement about whether the habeas cases have produced clear law. I and my colleagues at Human Rights First, as well as the 16 [former federal] judges who issued the Habeas Works report, believe that the law has developed quite clearly, and will continue to be clarified, whether or not we agree with every opinion issued. The point is that the standards for the government’s lawful detention authority already exist. If new legislation were to do anything, it would almost surely be to expand that authority, which we think is dangerous. Indeed, your own proposal for national security courts and detention would create an entirely new regime and court system to allow for indefinite detention of terror suspects on U.S. soil, providing them far fewer rights than they would now be entitled to in the criminal justice system. You can hardly say that this is not a more expansive view of detention authority than the courts have approved.

The legislation that Senator Graham has proposed would also create broader detention authority, categorizing anyone suspected of providing “material support” to al Qaeda or the Taliban as an “unprivileged enemy belligerent” subject to indefinite detention. It would also create a presumption that anyone who’s received training from one of those groups is an unprivileged enemy belligerent subject to detention. The courts, by contrast, have generally required the suspect to be a member of or active fighter with al Qaeda or the Taliban to be detainable, and have looked at the totality of the circumstances to decide when that standard has been met. Although I admit Al-Bihani is a bit unclear in this regard, the court there concluded it was dealing with someone who was both a member and a substantial supporter of al Qaeda and the Taliban, and therefore did not lay out whether and when “substantial support” alone would be sufficient grounds for indefinite detention.

As for the use of coercive interrogation methods, you have specifically called for new legislation that would allow the CIA to use coercive interrogation methods including threats, isolation and sleep deprivation. Currently in a civilian federal court, the use of such techniques would call into question the reliability of any statements made in response. Presumably the new legislation you advocate would encourage the admissibility of such statements. Along the same lines, Sen. Graham’s proposed legislation would presume the voluntariness of statements against interest given before a CSRT, ARB or comparable review board, or made as a result of treatment in compliance with the Army Field Manual. As you know, Appendix M of that manual allows many of the coercive techniques that you have condoned.

In short, although I and my colleagues don’t agree with every court decision, we do have faith that the courts can and ultimately will ensure that only those the U.S. deemed enemies in the AUMF will be subject to what we believe is, overall, a misguided indefinite detention regime. To expand the use of such a regime and bring it to U.S. soil would not be a sign of progress, but a step in a very wrong direction.

Eviatar makes several points, each of which warrants a lengthy response. I will satisfy myself with a very brief one to each:
1)      Eviatar contends that the law has developed quite clearly. This is a remarkable statement. I can think of no single foundational point of law related to Guantanamo detentions that one can reasonably describe as having “developed quite clearly”—save the fact of the courts’ jurisdiction itself. As I mentioned in my last post, I can think of a number of points on which the law has greater clarity than it did a number of months ago. And I can think of a few isolated polar positions that were on the judicial table at one point that are no longer on it. But I can’t think of a single major area in which the law is well-defined and stable.
2)      Eviatar’s contention that legislation would necessarily expand detention authority is dead wrong. One need only compare the Graham legislation to the law that’s developing in the D.C. Circuit to see that on some key points, this legislative approach is more generous to detainees than is the law emerging from the courts. It makes no sense for the human rights community to reject legislative involvement per se, particularly when they have a liberal legislature (at least for a few more months) and a conservative judiciary. The unspoken hope of many in the human rights world is that the Supreme Court will step in and save the day, once again checking the D.C. Circuit. But this is unlikely in the medium term. The questions in these habeas cases are not cert worthy. Justice Stevens is gone. And his replacement will likely recuse herself from these cases. So the high court’s involvement, if it ever materialized, would by no means imply a reversal of the D.C. Circuit’s conservative impulses. I believe as a matter of principle that Congress should play a more active role in these issues—irrespective of outcome. But a human rights advocate who wants policy made in the forum she believes will give detainees the best deal shouldn’t put all her eggs in the judicial basket. The question should be whether detention policy made by Barack Obama and Lindsey Graham is likely to be preferable to detention policy made by random panels of the D.C. Circuit. I will not weep over the policy D.C. Circuit judges will make on this subject. I suspect Eviatar will be less sanguine.
3)      Eviatar claims that my own proposals for detention authority constitute expansions of detention authority. This is a complicated proposition and true in some respects. But she should compare the scope of the detention authority in the model law I wrote last year with Colleen Peppard with the one being used by the D.C. Circuit. It is in key respects dramatically narrower. For example, D.C. Circuit has specifically rejected any suggestion that the government should have to prove that a suspect poses a prospective danger. The model law includes precisely such a requirement. Again, clear legislative rules can be broad or narrow, permissive or restrictive. My own ideas are a mix.
4)      I think it is very difficult to argue, as Eviatar does, that the detention authority in the Graham legislation is broader than the one emerging from the D.C. Circuit. Both include support. The big difference, as I see it, is that the D.C. Circuit has strongly intimated that a brief stay at a terrorist-linked guest house would alone overwhelmingly, if not definitively, justify a detention. Graham’s bill makes no such assumption. (I will have more to say on the comparison between D.C. Circuit case law and the Graham bill in future posts, in which I will analyze the Graham bill in detail.)
5)      Finally, on Eviatar’s claim that the Graham legislation reflects a tolerance of coercion, I beg to differ. The legislation explicitly requires a finding of voluntariness and merely creates a presumption--one that can be rebutted--that statements given in the course of affirmatively sanctioned interrogation and in official review proceedings are voluntary. If a detainee can show that this presumption should not hold because of specific facts in his case, a judge would be free to find a statement involuntary. I don't see how that would encourage the admission of coerced statements.
On this point, to close, I would like to propose a little wager. The D.C. Circuit has so far not ruled on matters related to the admissibility or probative value of allegedly coerced statements. It is unlikely to go many more months without having to confront the question. I bet that when the D.C. Circuit addresses this issue, it will adopt a standard more solicitous of government efforts to use statements that detainees allege to be the products of coercion than are the standards laid out in the Graham bill.  In other words, I bet that the human rights community will get a worse deal from the D.C. Circuit on this point than they would get from “administration critics” like Sen. Graham. And I propose the following stakes: If I am wrong, I will (a) publicly eat crow on this blog, and (b) take Eviatar to lunch at a restaurant of her choice. If I am right, she can (a) publicly eat crow on Human Rights First's blog, and (b) take me to lunch at a restaurant of my choice. What say you, Ms. Eviatar?
(Note: I will post unedited any response from Eviatar as soon as I receive it.)

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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