Redoing the Human Rights First Report Card II

Benjamin Wittes
Tuesday, January 11, 2011, 9:31 AM
The next several elements of the Human Rights First report card all deal with detention and trial. The first of these is the failing grade HRF gives to the Obama administration for not closing Guantanamo:
Grade: F
Closing the Guantanamo Bay Prison. In an executive order he issued on his second day in office, President Obama promised to close the Guantanamo Bay detention facility within one year.

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The next several elements of the Human Rights First report card all deal with detention and trial. The first of these is the failing grade HRF gives to the Obama administration for not closing Guantanamo:
Grade: F
Closing the Guantanamo Bay Prison. In an executive order he issued on his second day in office, President Obama promised to close the Guantanamo Bay detention facility within one year. While President Obama has continued to argue publicly that closing Guantanamo is a national security imperative, he has failed to close the facility.
Closing Guantanamo should never have been the policy objective. Obama should never have articulated closing a specific detention facility as a major objective of American policy, and human rights groups should not have made a fetish out of that facility. So while I agree that if one is to grade Obama on his performance here, one would have to give him a failing grade, I don't think he should be graded on this particular metric--though he may think he should. To me, the relevant question is whether Obama has generated a coherent and defensible detention policy for the long term--at Guantanamo or elsewhere. The fight over where to conduct that policy has always reflected an instinct for the capillaries. Unfortunately, Obama does not get a good grade on detention policy either, ironically because he--like HRF--has so confused it with the project of closing Guantanamo. The legal framework for detention is, alas, still nascent, still being determined by the courts, and still composed of isolated pieces that are related to one another quite irrationally. I would give Obama a D in this category--and that D would stand even if Guantanamo closed tomorrow. I have no basic argument with HRF's next category, but I think the grade is actually ungenerous:
Grade: B
Transferring GTMO Detainees Cleared For Release. There were 242 detainees at Guantanamo when President Obama assumed office. After conducting a year-long review of all detainee files, the administration approved 126 detainees for release. The administration has successfully repatriated, resettled or transferred 67 detainees. Of the 59 remaining who have been cleared for release, 32 are scheduled for repatriation or resettlement, and 27 are Yemenis who have been cleared for transfer, but are subject to the administration’s self-imposed ban on transfer based on security concerns in Yemen. Not included in this group are an additional 30 Yemenis who could be repatriated if the first group is repatriated.
Resettlement of detainees is actually an area in which the administration has greatly outperformed my expectations. The conditions in Yemen, and the politics they create, are not the administration's fault. And Yemen aside, the administration has some very solid accomplishments in persuading European and other government to take Guantanamo detainees. Of course, we may come to regret some of these releases, but I consider them responsible assumption of risk and commend the administration for the diligence with which it has negotiated these transfers. I would give the administration an A for its resettlement efforts in general. I also think that HRF is being ungenerous in its next category and conflating two very different issues:
Grade: C- Trying Terror Suspects in Federal Court. Under both the Obama and Bush Administrations, federal courts have tried and convicted more than 400 individuals of terrorism related offenses in federal court since 9/11. This year, the administration secured a guilty plea from the Times Square Bomber, Faisal Shahzad, who now faces life in prison. The administration also successfully prosecuted Ahmed Ghailani, the first detainee transferred from Guantanamo in 2009. He now faces a sentence of twenty years to life when sentenced in January 2011. The administration has designated 36 individuals being held at Guantanamo as eligible for trial in federal court or before military commission. Yet the administration has failed to exercise its authority to transfer any other Guantanamo detainee to federal court, including those accused of the 9/11 attacks.
The administration's record on terrorist trials only looks desultory if one focuses on the Guantanamo population. The actual record regarding new captures is extraordinarily impressive. It's not just Shahzad. It's Zazi. It's Abdulmutallab. It's a lot of lower-level people and early-stage plotters. The list is actually quite long, and it is one of the signature accomplishments of this administration in the counterterrorism arena. It is ironic that HRF, which champions trials in federal courts as the only legitimate trial approach, does not make more of it. Where the administration has not performed as promised was in bringing Gitmo detainees to trial in federal court. And the failure to figure out what to do with the 9/11 conspirators is glaring, to be sure. But some of us are not surprised that the project of trying Guantanamo detainees in federal court turns out to be a lot harder politically and practically than groups like HRF led us to believe. Indeed, the numbers that could be moved to the U.S. for trial were never going to be large. I would divide this grade into two separate grades. For the use of criminal justice as a counterterrorism tool prospectively, I would give the administration a very admiring A. For the use of the criminal justice system as a means of resolving Guantanamo cases, and indeed for the resolution of Guantanamo cases though trial of any kind, I would give it an F--with the caveat that I never expected it could do anything like what the president's executive order seemed to promise. HRF next flunks the president for failing to kill the military commissions system:
Grade: F Ending Military Commissions that Fail to Comply With Rule of Law. The Obama Administration restarted the military commissions at Guantanamo. The Commissions fail to provide minimum judicial guarantees required by the Geneva Conventions. Their use constitutes a war crime under international law. For example, they are used to prosecute as war crimes conduct that was not a violation of the laws of war at the time the conduct occurred. They fail to ensure exclusion of evidence gained through torture or other abuse. They do not ensure that an accused or defense counsel will be able to see all relevant inculpatory and exculpatory evidence. Permissive hearsay rules fail to ensure that an accused or defense counsel will be able to confront witnesses. New rules governing procedure were introduced in the spring. While the rules are an improvement over the past iterations, they do not cure the fundamental flaws of the commissions. The only way to ensure that detainee trials comport with applicable law is to end military commissions and transfer prosecutions to federal criminal court.
I disagree with virtually every syllable of this analysis--except the grade. I don't have any problem in principle with the use of military commissions. I don't think their use constitutes a war crime. I don't doubt that defendants could get fair trials under the commissions as currently constituted. In fact, I think the MCA 2009 is a pretty good piece of legislation, and I give the administration a lot of credit for moving to institutionalize military commissions in law. Where I fault the administration, rather, is for its nearly total failure--having obtained the legislation--to get commissions off the ground. The Obama administration has all but completed the Bush administration's project of investing in commissions just enough to keep them breathing in a fashion that makes them ridiculous. My problem with Obama's performance in this area, in other words, is virtually the opposite of HRF's. They complain that he hasn't ended America's experiment with an alternative trial scheme. I complain that having decided to continue the experiment, he has not been willing to conduct it in a fashion that would produce meaningful results. Finally, HRF gives Obama a bad grade for a subject close to my detention-oriented heart:
Grade: D Ending Indefinite Detention. It was reported on December 22, 2010 that the Obama Administration plans to issue an Executive Order that would provide for legal representation and a review process for the 48 Guantanamo detainees who have been designated to be held indefinitely without trial. Introducing additional due process protections and review is a welcome advance, as is eschewing legislation that would establish a permanent scheme of preventive detention. But the better course is to try detainees against whom there is evidence of criminal conduct in federal court and release those against whom there is insufficient evidence to charge with a crime. The administration continues to use detention criteria that are broader than that provided for under the laws of war.
On this point, HRF and I simply live on different planets. I do not wish to see indefinite detention ended. I wish to see precisely the "legislation that would establish a permanent scheme of preventive detention" that HRF decries. What's more, I think we are creating just such a scheme in litigation as we speak. This is an old debate between HRF and me, one on which the twain shall never meet. No president is going to end indefinite detention. It is a part of our legal landscape, whether HRF admits it or not. The real question we face as a society is what rules will govern detention and who will write them. As long as HRF denies this reality, it guarantees that it--at least--will be marginal to the project. So needless to say, I don't think Obama should be graded on whether he has ended indefinite detention. As I said earlier, I think he should be graded on the quality of his detention policy. And as I said earlier, I think that quality is low--ironically for precisely the reasons that HRF faintly praises Obama in this paragraph: He has failed to come to terms with the need for a long-term detention architecture, based in statute, and flexible against the twists and turns the coming years will throw our way.

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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