Two streams of detention-related legal argument came together at the Senate Judiciary Committee today, as AG Holder answered questions from Senator Graham. Their colloquy blended the question of the fate of GTMO with the narrower, but increasingly contentious, question of the fate of Ali Mussa Daqduq. The full text of their exchange appears below, and is worth reading. The general thrust of Graham’s position is that we must use GTMO for Daqduq or else face the intolerable option of leaving him with the Iraqis, who likely would release and repatriate him to Lebanon). Of course, it’s not so simple as saying use GTMO.
Certainly the option of holding him in straight military detention, without any prosecution, is not a plausible option now that the war in Iraq for better or worse is over (or ending, from the U.S. perspective). That’s just how it goes when it comes to military detention for the duration of hostilities, unless of course one plans to argue that Daqduq can be held in connection with some conflict other than the one in Iraq that began in 2003. He’s not within the scope of the AUMF. One would have to argue, I suppose, that there is a conflict underway vis-a-vis Hezbollah, with the domestic authority to participate in the conflict resting on Article II inherent authority to engage in national self-defense. All of which would be put before a court in short order, via a habeas proceeding. This just isn’t likely to work.
But could he nonetheless be prosecuted by military commission? I’ve posted on this several times, most recently here. The short of it is that this might work and might be a good option, but it does not have to be done at GTMO as opposed to being done in the US itself (for my part I wish we had done it, in Iraq, years ago). As to the latter option, I note that Graham observed as follows: “Mr. Attorney General, if you try to bring this guy back to the United States and put him in a civilian court, or use a military commission inside the United States, holy hell is going to break out.”
Really? Even with a military commission instead of a civilian trial? I know, I know, it’s a good prediction of the blogospheric/email-chain/talk-radio/tv-pundit/op-ed reaction in some circles, not to mention what the various campaigns will likely do with it. But I think this is wildly unwarranted, for reasons I touched on in prior posts. I think that even if the administration chooses a civilian trial–and certainly if they opt for a military commission.
In any event, here is the full exchange:
Thank you Mr. Chairman. Mr. Attorney
General I want to congratulate you and all of those who are risking their lives
in the war on terror and fighting crime of some very serious and substantial
tactical successes against a very vicious enemy. And I — I think it’s
appropriate that we all acknowledge the hard work that’s going into keeping the
Now from a strategic point of view, I think
we’re coming to some crossroads here as a nation about what we need to be doing
in the future. Now, I embrace trying to find a new confinement facility other
than Guantanamo Bay. Senator McCain did when he ran for president. Senator
Obama, President Bush, but I’ve come to conclude and I may not be the best vote
counter in the world, but we’re not going to close Gitmo any time soon.
In September of 2000 — this year you were
in Brussels and I think you stated to the — the European Parliament, “We
have an election that is coming up in 2012, no November of 2012. We’ll be
pressing for the closure of the facility between now and then,” being
Gitmo “and after the election we will try to close it as well.” Am I
wrong in assuming there’s not the votes here to close Gitmo before November of
Well you can certainly count votes better
than I can in this body and probably in the House as well given you — you
having served there. But it is the administration policy to try to close
Guantanamo. We think it would be an appropriate thing to do for a whole variety
of — of reasons. We have certainly run into opposition, but…
Let — let me if I may just interrupt. I
understand where you’re coming from and I have embraced the idea of trying to
find a new confinement facility. But certain legal changes had to occur for
that to be viable that haven’t occurred. We don’t need to blame each other, but
from now going forward, we do live in a real practical world, do you agree with
In a real practical world?
Yeah. We’ve got to make practical decisions
It’s not as practical as I’d like it to be
all the time, but it’s somewhat practical.
But I guess my point, Mr. Attorney General,
is that we don’t have a jail in the war on terror for future captures. And I
think that makes us less safe. What is our — where would we put someone if we
caught them tomorrow, a high value target? Where do we confine them?
It is something that we are discussing.
Would you put them in Afghanistan?
Well there are a number of options that we
are discussing and we are trying to work our way through to come up with a
proposal that would be both effective and that would generate the necessary…
At this point I honestly can’t see an
option that makes sense. The idea of putting them on ships for a limited period
of time is not a viable substitute because ships were never meant to be
permanent confinement facilities. I don’t see Afghanistan accepting new war on
terror captures that would bring the Afghan government down. Certainly the
Iraqi’s are not going to do it. So if we don’t use Gitmo, what are we going to
Well as I said those are the options that
we’re trying to discover. The president has made clear, the administration has
made clear that we are not going to be using the Guantanamo facility so we have
to come up with options that can…
OK. Mr. Attorney General, I have tried to
be as supportive as I know how to be in creating flexibility for the executive
branch and not micromanage the war. But I have come to conclude that Gitmo is
not going to close and there is no viable option other than Guantanamo being
used, that the Iraqi legal system is not going to allow us — they are not
going to become the jailer for the United States.
Afghanistan is not going to become the
jailer of the United States. Naval ships are not a good option. So I just
really believe that we need to embrace reality. And the reality is we need a
jail. We don’t have one. And Gitmo is the only jail available.
Now this Daqduq guy who the — is being
held by the Iraqis, he is a Hezbollah capture in Iraq, an Iranian basically
inspired person, who was training Shia militias, and is charged with killing
If we don’t put him in Gitmo, where are we
going to put him?
Those are options we have been discussing.
How he will be dealt with are topics of conversation that I am engaged with
with my counterparts on the National Security..
We had a conversation about Khalid Sheikh
Mohammed and how I thought it would be ill advised to put him in New York City
civilian court — federal court, because he was an enemy combatant who would be
– and I think that didn’t go over well simply because it was an ill-suited
case choice, not the fact that you can’t use, you know Article III courts, just
not for somebody like him.
Mr. Attorney General, if you try to bring
this guy back to the United States and put him in civilian court, or use a
military commission inside the United States, holy hell is going to break out.
And if we let him go and turn him over to
the Iraqis, that is just like letting him go. I think this would be a huge
He is charged with killing five Americans.
And at the end of the day, I try to be as practical as I know how to be. It
would be a national disgrace to allow this guy to escape justice. And the only
option available to this nation is Gitmo because there is bipartisan opposition
to creating a confinement facility in the United States.
I just beg and plead with this
administration to create an option that is viable. and the only viable option
is to use Guantanamo Bay.
Now let’s talk about Guantanamo Bay. Do you
believe it is a humanely run prison?
I think — I have been to Guantanamo. And
as the facility is now run, I believe that the men and women down there conduct
themselves in an appropriate way and that prisoners are treated in a humane
Isn’t it true that every detainee at
Guantanamo Bay will have access to our federal courts to make a habeas petition
for their release?
Right. There are a number of cases that we,
in fact, are handling here in the D.C. courts.
Isn’t it true that any conviction that
comes from a military commission will be automatically appealed to our civilian
I think that that is true. I am not sure.
But I think that is true.
I think that is true. So the bottom line is
that we all agree that Guantanamo Bay is a humane detention facility being is
well run, and that we have civilian oversight of what happens at Guantanamo
So my view is that we are less safe if we
don’t have a prison. Please tell me in the next 30 days — submit to this
committee or me individually a plan, because we are running out of time, that
would be reasonable, sound, and has political support to confine future
captures and to move people out of Iraq and Afghanistan who are too dangerous
to let go.
Could you do that in 30 days?
I don’t know. This is a decision that will
be made by — I will be a part of the decision making process. But the decision
itself will be made by I think people higher up the ladder.
Could you tell those people higher up that
we are about to withdraw from Iraq and these people in Iraq are going to be let
go. And we are running out of the ability to hold people in Afghanistan. That
time is not on our side.
The war is an ongoing enterprise. And we
need a jail.
So I urge and will have other senators urge
you to find a solution to this problem within 30 days.
Thank you very much for your service.
Sure. One thing I would say — and I go
back to what you started with. Whatever the proposal, whatever the
administration works it way through, I hope that it will be viewed in a
practical manner by members of Congress and take into account the history that
we have with regard to our ability to safely detain people, to try people, and
understand that whatever it is, the proposal that we make…
I tried to be practical, sometimes to my
own detriment. But I promise you I will be practical.