Terrorism Trials: Civilian Court

Eric Lewis on an Obama Human Rights Agenda---That's Not Going to Happen

By Benjamin Wittes
Friday, November 9, 2012, 7:21 AM

Writing at the New York Times web site, Eric Lewis of Lewis Baach, describes a human rights agenda for the Obama administration's second term:

First, he must release certain Guantánamo detainees, who have never been charged or tried. Of the 166 detainees still incarcerated there, 86 have been cleared for release because they clearly pose no threat to America. Congress has passed laws to stop the admission of Guantánamo detainees to the United States. But the executive branch has the power to admit individuals to the country and to transfer suspects for trial. And the Department of Justice controls sufficient portions of its own budget that could be used if Congress refused to pay for transfers. It’s time for Mr. Obama to stare down the fearmongers and release these people into the United States or other countries that will accept them.

Second, the United States should try the remaining Guantánamo detainees in civilian courts. There are undoubtedly some bad people at Guantánamo, and we should marshal all legally obtained evidence and put them on trial. The Bush administration fouled its own legal nest through torture, but there is admissible evidence in most cases, and civilian courts have ample experience and tested procedures in prosecuting terrorists. The panic and pandering that caused Attorney General Eric H. Holder Jr. to reverse his decision to try Khalid Shaikh Mohammed in New York should not be tolerated in Mr. Obama’s second term.

Third, the United States should end indefinite detention without trial. Under the laws of war, the right to detain enemy combatants ends when the war ends. The Iraq war ended last year and the Afghan war will likely end in 2014. Unless Mr. Obama wants to assert the untenable position that the war on terror or the war on Al Qaeda continue everywhere and indefinitely, then the legal basis for further indefinite detention will end. Detainees must be tried or released. There is a risk that released detainees could plot against us after returning home. But America has mind-boggling technological, military and diplomatic resources to monitor and intercept the communications of those who threaten us. We simply can’t hold people indefinitely without charge under a theory of permanent war.

Finally, Mr. Obama must bring drones under the rule of law. The problem isn’t that he can’t be trusted to make careful decisions. By all accounts, he conducts painstaking reviews to ensure that the targets pose genuine threats and the risks of collateral damage are low. But it is unacceptable that these decisions are made without public accountability or oversight and that American citizens, like the Yemeni-American cleric Anwar al-Awlaki, have been deprived of their lives without being afforded due process.

The president should apply for authority to a secure United States District Court for a warrant before undertaking any attacks on American citizens, articulate clear criteria for ordering drone strikes that can be debated and challenged by Congress or courts, and disclose strikes after they occur (while protecting key national security sources).

Beyond the basic legal problem that releasing Guantanamo detainees---or moving them to the United States---is illegal (at least absent onerous certifications by the Pentagon), the piece has a higher-altitude problem: Very little of this is going to happen. If Obama works very hard, he might be able to get the transfer restrictions relaxed to facilitate a certain set of detainee resettlements. But there is no chance of civilian trials for Guantanamo detainees after Ghailani (though Lewis and I might think it a good idea). Military commissions are the only game in town, and that's not going to change. There is even less chance of an end to law-of-war-based detention. And without a major act of Congress, there exists no legal basis to ask a district court to issue a Drone Strike Warrant. Some of this agenda might be doable if Obama wanted to spend a great deal of his political energy in a second term doing it. But some of it is simply not doable. It would be interesting to see a more realistic effort at a human rights agenda for Obama's second term---one that did not simply breeze past political realities and legal constraints.