Formulating a Reliable Detainee Policy

Will asked me to comment on this op-ed by Jack Goldsmith and Benjamin Wittes pleading with Congress and the President to formulate clear rules regarding detention policy in the War on Terror.

Although I suspect I would strongly disagree with Goldsmith and Wittes about what the proposed rules should look like, I think the substance of this op-ed is probably right on target. The courts ultimately are the arbiters of what is and is not constitutional, and have to remain that way, but they are absolutely not well-suited for affirmatively drafting rules and that sort of thing. Once the Supreme Court started (correctly, IMHO) ruling policies unconstitutional, it was the job of the legislature and, to a lesser extent, the executive, to formulate clear rules to replace the unconstitutional policies rather than leaving an undefined vacuum. Perhaps the replacement rules would have still been unconstitutional and perhaps the Supreme Court would have been forced to intervene again. But at least some of those replacement rules would have been constitutional and would have formed a basis for prosecutors, detainees, and attorneys to rely upon, and Congress could have again gone back to the drawing board to fill the new, smaller vacuum.

Now, however, you’ve got different cases pending before different judges in different courts with little to rely upon other than a handful of SCOTUS decisions that may or may not be relevant in a given case. Whatever results from that process, including whatever rules come out of Judge Hogan’s chambers, are going to be of very limited precedential value. At a minimum, you’re going to wind up with a whole mess of rules that will likely be contradictory, and at the very least uncoordinated, and provide absolutely nothing upon which potential litigants may rely. Until you’ve got something that has the weight of a formally enacted law or, at a minimum, properly enacted administrative regulations, you’re not going to have anything upon which litigants can look to. The conflicting rules will also mean that you will wind up with detainees getting freed while other detainees with essentially identical cases languish in prison, with the only difference being the court or judge before whom they brought their claim for relief. Not good.

It’s not as if Congress isn’t amenable to taking second, third, and fourth bites at the apple when their legislation is found unconstitutional, either. For instance, in the various iterations of the Communications Decency Act, and COPA and CIPA, they made numerous attempts to legislate access to porn on the internet despite findings in each case that the legislation was unconstitutional. Eventually, they got it right so it wasn’t necessary to go back to the drawing board anymore.

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16 thoughts on “Formulating a Reliable Detainee Policy

    • I think the logic applies equally to both. However, I should emphasize that in no case would Congressional action occur in a vacuum; the courts would still have the right and authority to deem specific elements of any policy unconstitutional or in violation of international treaties.

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      • I’m so happy to have my cynical hypotheses confirmed so baldly and so early on in our new, happy life under the Obamamama. Thank you, Mark Thompson! All we needed for it to be logical for Congress to formulate reliable detainee and coercive interrogation policies was a change of administration based on mass psychosis, aka Hope n’Change. During the Bush years, reliable detainee and coercive interrogation polities were not needed. They already existed, of course, in their final and revealed forms as the Turd Convention of the Geneva Conventions I, II, and III. Whatever. Whatever.

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        • Huh? I’m quite certain I’ve said all along that Congress dropped the ball by neglecting to clarify detainee policy. But that’s a far cry from vindicating Bush-era policies. Certainly, it doesn’t make those policies any less constitutional. There is a huge difference between a court being asked to make policy and a court being asked to strike down as unconstitutional or illegal under international treaty a particular element of a statute or a particular policy of the executive branch.

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          • For one, I wasn’t referring to you, specifically, since I haven’t made the effort to track your views in any detail. For another, I’m not defending Bush’s record here. Just the opposite: he “dropped the ball” more than anyone since the President can at least light a fire under Congress’s butt so that it gets the job done, somehow.

            But the idea that “Congress dropped the ball” on these two issues was never part of the debate back in the Bush years—far be it for anyone to blame anyone but Bush for the mess we’re in. As far as I know, only a few writers, like Wittes or Amos Guiora, have addressed this at all, and who knows or cares about them?

            My point stands: during the Bush years, people were not aware of the need for Congress to formulate reliable detainee or coercive interrogation policies. They were only aware that the sacred precepts of the Turd Geneva Convention were being willfully violated by Nazi-like Repiguclans. Now, under Hope n’Change, the Obamamama cannot be blamed, since he is pure of thought. Now, after eight years or more, it’s suddenly time for Congress to act. Whatever.

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            • I don’t this criticism holds much weight in this case, though, because whatever one think of Goldsmith and Wittes, they’ve been pounding this drum in one form or another for awhile. Wittes in fact wrote a relatively influential book on the subject in 2008 (before Bush left office).

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                • Wittes et all have been pounding this drum for a while in isolation. The lack of interest in the theme you note is not an explanation; in fact, it begs the question of why Congress and the President do not act to remedy the obvious lack of reliable policies here.

                  If I wrote a post on Mexican politics, I’d get very little response because “people are pretty unenthused” about it. But people are pretty enthused about the topics of detainees and coercive interrogation. But they’re not enthused about formulating policies that would allow effective national security in the face of the Islamicists’ asymmetric war against us. That would entail making compromises and the famous hard choices that are the stuff of democratic politics. This is not something people “get enthused” about. Therefore, they’re enthused about casting blame, displaying righteous wrath, and parading their own moral uprightness. Thus, they’re enthused about blaming Bush. Now that Bush is out of the picture, they can’t blame the Obamamama—he’s naturally blameless, since Bush failed entirely to inherit him a nation with no problems to solve and he’s inherited so many problems. So now, finally, we may get some action. Who knows?

                  I distinctly remember debating here and on other blogs about this and either being brushed off, because I was not blaming Bush, exactly, but blaming Congress for the lack of reliable policies, or being called evil names because of the same. I’m sure you weren’t one of either group, but they’re here.

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  1. We have had multiple detainee policies but members of the left kept filing suits claiming it wasn’t humane enough. Then they turn around and complain that the poor detainees aren’t being given a trial fast enough, oblivious to the fact that they are slowing things down. It reminds me of lawyers that get to court and then improperly object to everything hoping that eventually they can wear the judge down into grating their silly objections. The detainees were lucky to get POW status under the Geneva Conventions.

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    • ” The detainees were lucky to get POW status under the Geneva Conventions.”

      More f*cking lies. The US went into areas and paid lavish sums of cash, no questions asked, for bodies. In Iraq, the US swept up huge numbers of people almost at random, without a clue, and kept them because US forces had not much better idea of who was a guerrilla/terrorist and who wasn’t than I do.

      By your standards, the US can go into countries, sweep up thousands or tens of thousands people and do what they wish to them, and it’s all fine with you.

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        • Your first sentence doesn’t make sense, Scott, perhaps you should revise it. As for your second sentence, please do tell me, please read what I said, think about it, and try again. Perhaps you should get a friend to help you.

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          • What no cussing this time? Is your cussing a way to make up for your lack of vocabulary or cogent thought? Yes, the US picked up some people innocent people as did our afghan allies but we didn’t seize whole villages for no reason. We didn’t pay or tell our afghan allies to go out and seize innocent folks for no reason as you accuse the US of doing. As for those detainees not released, they are lucky to get the protection of the Geneva Conventions as they don’t meet the requisite standards.

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      • How come nobody but you knows that the US military has been off on a massive scalp-hunting expedition in Iraq and Afghanistan, to rival the Indian Wars of the 19th century? How “lavish” were these “lavish sums” paid for the death and/or torture and imprisonment of the Muslim masses?

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        • Last time I checked, we asked our allies to capture enemy fighters not just any guy off the street. If they didn’t act in accordance with our instructions that is a different matter than what due process, if any, detainees should get. I’m not convinced that most, if not all, of the Afghan/Gitmo captives should even get the protection of the Geneva Conventions but they certainly should not get any more protection/ rights which is what the liberals seem to want to give them. In WW2 all the Axis POWs got were the protection of the Geneva Conventions as opposed to civil trials with full American constitutional rights.

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