Some Thoughts in Response to Steve Vladeck

By Benjamin Wittes
Tuesday, September 14, 2010, 3:36 AM

In his two responses (here and here) to Steve Vladeck's earlier post on S. 3707, Bobby has said, better than I could, much of what what I believe. What remains are a few isolated points of disagreement between me and Steve that are, I think, worth airing. Here they are in approximately the order in which they appear in Steve's original post:

1) In his extensive criticisms of the Graham bill, Steve opens one of his sections with the following curious concession: "the Graham bill provides something vital that the AUMF did not: a specific definition of who can be detained." Pause a moment over that. Even Steve here has to admit that the bill he is damning contains something he terms "vital" that addresses what he acknowledges is a nine-year-old deficiency in the operative law of the conflict. Steve later makes clear that "the scope of detention authority is entirely Congress's baliwick, just so long as the legislature operates within constitutional limits." So there's no inconsistency here on his part. He objects both to the Graham legislation's efforts to make rules beyond the substantive rules regarding whom the government may detain and to the substance of the definition Graham proposes on that point. But he doesn't object in principle to greater clarity on the substance of the detainable class. That said, it's a revealing admission on Steve's part that current law is not adequate.

2) Steve goes on to argue that the basic problem with the Graham bill's definition of the detainable class is that "the laws of war are hardly clear that being a 'member' or a 'part' of a group like al Qaeda or the Talbian automatically makes one a 'belligerent' subject to detention under international law." I am not sure I know how to respond to this point. I had rather thought that being a member of or "part of" those groups was the point of consensus regarding who is detainable under both the AUMF and the laws of war. I had thought that the debate concerned who other than members might also be detainable. If members of enemy forces are not covered by the international laws of war, then who exactly is? Suffice it to say in response to this point that if Steve really questions the detention of members, then his problems do not end with the Graham bill. He must also reject (I don't think I'm exaggerating) all post-Boumediene case law by all judges in all courts. For without exception, the case law either presumes or holds that members of the enemy--those who are "part of" it--can be detained under the AUMF, the laws of war, or both. The debate on the courts has only concerned whether supporters as well those who are "part of" enemy forces can also be detained. The important point here is that Steve's conclusion that the Graham bill significantly expands detention authority rests on a dramatic overstatement on his part of the constraints that international law are likely to place on the detention of the enemy's members. In practice, the differences between the Graham bill and what the D.C. Circuit has said on the subject are narrow indeed.

3) Steve is quite right that I overstated the limited impact of the Graham bill on the scope of habeas jurisdiction. What I meant, to be clear, was that the bill does not purport--as prior legislative efforts sought to do--to strip the courts of jurisdiction to entertain challenges to military detentions. Rather, it maintains a strict neutrality on the question of who can bring such suits and merely offers rules under which, when the courts entertain them, these cases should proceed. I did not mean to imply that the bill would not limit the arguments of detainees in certain respects. And Steve is correct that the bill bars claims "relating to the detention, transfer, treatment, trial, or conditions of confinement" beyond pure challenges to the legality of a detention.

4) I would, however, broadly defend the substance of these restrictions--though some may require some tinkering. Indeed, in reading Steve's litany of restrictions the bill would impose, each described with something approaching horror, I find myself nodding in agreement with each straight across Steve's incredulity. Steve is astonished that Congress might wish to restrain litigation over transfers; I find myself sanguine on that point. He is concerned that Congress might require detainees facing trial to exhaust their remedies in military commissions before challenging those commissions in court. After two rounds of legislation establishing the military commissions, that sounds pretty reasonable to me. Steve is upset that the bill would require a stay of a habeas proceedings where the government has slated the detainee for transfer and is making good faith efforts to effectuate his release. But why? Isn't that the very essence of an unnecessary litigation? After all, the most a habeas suit can generate under current law is an order to release the detainee and for the government to engage in good faith efforts to find a means of doing so.

5) Steve objects to the bill's language concerning the voluntariness of detainee statements, and specifically to language which creates "a rebuttable presumption in favor of the voluntariness of statements against interest given before a Combatant Status Review Tribunal, Administrative Review Board, or comparable review board or as a result of treatment in compliance with the Army Field Manual." Steve writes suggestively, "In other words, any statement against interest not obtained through torture is presumed to be voluntary. Hmm . . ." I'm not sure what he's getting at here. But I will defend the provision. The Army Field Manual affirmatively sanctions a series of interrogation procedures deemed to be appropriate for military (and now CIA) use. Yes, one can imagine combinations of these techniques over time that would give rise to serious voluntariness questions. But by and large, compliance with the field manual is considered the hallmark of non-abusive interrogation. The idea in the bill is to require voluntariness as a threshold for admissibility, but to create a presumptive safe harbor for lawful, non-abusive government conduct. Compliance with the field manual is good evidence that the government is not trying to evade the rules. To be sure, if a detainee can show that, though composed of lawful conduct, his interrogation was nonetheless coercive--say, if he could show that he was subjected to the harsh procedures in the field manual's Appendix M--he could presumably rebut the presumption of voluntariness. But there has to be some safe harbor. It cannot be that the law offers interrogators no rules that, if they follow them, will protect the fruits of their interrogations against later judicial attack.