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Trevor Morrison on Precision in Language and Military Commissions

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Monday, April 2, 2012 at 4:58 PM

Trevor Morrison of Columbia Law School writes in with the following response to my earlier post about Raha Wala’s use of the word “government.” His point is quite correct; my phraseology, about which he complains, was imprecise. I pass on Trevor’s comments–along with my own below them–as a kind of clarification:

I like your post in response to Wala’s response to Jack [regarding] “the government’s” use of commissions.  You’re right that he’s imprecise in exactly the ways you describe.

But if it’s precision we’re seeking (and it should be), I think this sentence from your post misses the mark a bit:  “The executive branch’s position–properly understood–has been that it wants military commissions to be available but almost never to have to use them, and that their use should be limited in any event to the legacy problem of Guantanamo Bay.” 

A few specific quarrels:

1.  I don’t think it has ever been the Administration’s position that military commissions should “almost never” be used.  Yes, the Administration has frequently defended a presumption in favor of Article III courts over commissions.  But it has also identified a range of circumstances in which the presumption could be rebutted.  Those circumstances cover much more ground than “almost never.”  I think that’s pretty obvious from the face of the 2009 protocol entered into between DOJ and DOD to govern prosecution forum decisions for Guantanamo detainees.  As far as I know, that protocol remains in place even though it is funcationally undermined, for now, by the statutory restrictions on Article III courts.  At the very least, I think the protocol is a useful indication of Administration preferences if there weren’t any such statutory restrictions in place.  The protocol is available here.  

2.  I’m not aware of any formal or informal statement or indication that the Administration supports commissions only for Guantanamo detainees.  Yes, the affirmative statements in favor of commissions have been generally limited to that population.  But that’s not the same as saying the Administration opposes their use for anyone else.  At most, I think you could say that the Administration has not provided (nor has it had to provide, up to this point) a firm answer to the questions whether, and when, it might favor commissions for individuals not now held at Guantanamo.  But one indirect indication that the Administration is not categorically opposed to any such use is that the MCA of 2009 is not confined to such detainees, and the Administration neither sought language imposing any such constraints nor opposed the broader language establishing their potential availability in other circumstances.  (True, the Administration has said that Article III courts will be used for individuals apprehended within the U.S.  But that still doesn’t confine commissions just to the Guantanamo population, as it leaves open the question of people apprehended elsewhere in the world.)

3.  All that said, there undoubtedly are some in the Executive Branch who do think commissions should “almost never” be used, and/or who think their use should be limited to people now at Guantanamo.  But that doesn’t mean those views describe the position of the Executive Branch.  Instead, it underscores that the point you made about Wala’s words — that “the government” is too general a term, covering different branches with different positions — also applies to the Executive Branch itself.  The Executive Branch is in some senses a “they,” not an “it,” and not [every] component of the Executive Branch will have the same preferences on every issue.  Still, presidential administrations do have the capacity to speak for the entire Executive Branch, and on this set of issues I don’t think your account of the Executive’s positions is quite right.

Ok, let me clarify what I meant. I actually wasn’t trying to describe the formal position of the executive branch but the de facto position it has effectively emerged with as a result of the various actions it has taken. In looking over what I wrote this morning, that is not nearly as clear in my post as it was in my head when I wrote it. My apologies for that.

I agree with Trevor on all three of his points. In fact, in one area, he doesn’t go quite far enough. The administration has flirted with the possibility–in the Daqduq case–of using a military commission for a prospective case of a person not held at Guantanamo. So to the extent my comments are taken as a statement of the administration’s formal position, they are, indeed, quite imprecise–imprecise to the point of being wrong.

As I say, however, I meant the point not as a description of the administration’s formal position but as a characterization of the attitude it has projected towards commissions. That is, it has shown no enthusiasm for them, while making sure they remain available. While it has a protocol for deciding between commissions and federal court trials, in all of the major non-Guantanamo cases, at least the public ones, that protocol has yielded the same answer: federal trials. And until Congress forced it to use commissions for Guantanamo detainees, the administration had an unmistakable preference for federal trials for Guantanamo detainees too. I’m not saying that this preference is wrong, but it’s pretty hard to mistake.

To be sure, the administration’s attitude has changed a bit in recent months; the commitment to commissions has grown as the altneratives to them for certain purposes have faded in plausibility. And Trevor is certainly correct that the executive is not all of one mind on the subject. But it’s still a pretty good approximation of the attitude that the administration has projected, though admittedly not the position it has laid out.

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