Jennifer Daskal's NYT Op-Ed on Guantanamo - Further Comment

By Kenneth Anderson
Friday, January 11, 2013, 7:03 PM

Further to Ben's post on Jennifer Daskal's NYT Guantanamo op-ed today, over at Opinio Juris I comment on a different part of the op-ed.  Ben refers in part to reasons Jen offers why a transfer of Guantanamo detainees to the US prison system would not be very attractive to the detainees, and the difficulties in sending back even those who have been cleared for release.  The last half of the op-ed essentially frames the closure debate not strictly on its own terms - a matter of Guantanamo as such - but instead around a larger, somewhat "external" consideration.  She looks to statements from the administration (Jeh Johnson's Oxford University speech from December) that are starting the process of articulating what an end to the conflict would look like, its conditions and consequences as a legal matter.

It seems to me that Jen's argument (every bit as brave for someone coming from the human rights community as Ben says it is) is essentially premised on a particular meaning of the end of conflict.  Specifically, that the legal end of conflict ends the legal authority to detain.  That seems to her a stronger legal ground, and a strategically much easier moment in time, to succeed in closing Guantanamo.  I agree that it's a much more powerful argument (though I would likely argue that it's not a simple on-off switch, and the government has legal room to deal with different parts of the conflict differently; leave that for a different day).  This move seeks to make closing Guantanamo a consequence of a larger legal sea change about the conflict, rather than simply an argument over Guantanamo.  In that regard, I suggest at Opinio Juris that Jen's piece presages an increasingly lively and vocal debate over the meaning of the legal end of conflict - the conditions and consequences thereof.

At this moment (given that we have one serious US government statement on the subject), that means parsing Jeh Johnson's deliberately hedged speech at Oxford.  After all, that speech (and particularly one of its footnotes) noted that the Allies continued to hold various German prisoners for years following the end of the war.  As the speech says:

At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence.  In general, the military’s authority to detain ends with the “cessation of active hostilities.”  For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations [i.e., the US and UK governments] faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.(FN 23)

And here is footnote 23 from the speech (links omitted), in support of Johnson's cautiously exploratory suggestion that there could be in some cases post-hostilities detention for at least some period of time:

Regarding post-hostilities detention during the conclusion of World War II, see Ludecke v. Watkins 335 U.S. 160 (1948) (holding that the President’s authority to detain German nationals continued for over six years after the fighting with Germany had ended); See also Alien Enemy Act of 1798 50 U.S.C. §§21-24 (2000).  See James Richards, British Broadcasting Corporation, Life in Britain for German Prisoners of War, (noting that by the end of 1947, 250,000 of the prisoners of war were repatriated, and the last repatriation took place in November 1948).