On June 2, I had a long discussion with Glenn Sulmasy, a National Security and Human Rights Fellow at Harvard, Professor of Law and Commander and Judge Advocate, U.S. Coast Guard Academy. He's also the author of the forthcoming The National Security Court System: A National Evolution of Justice in an Age of Terror, due in August. His book presents a "third way" solution for trying the detainees in what he proposes to call the "war against al Qaeda," and to deal with the thorny issues of the Guantanamo detainees. He proposes scrapping military commissions, forgoing military courts and federal civilian courts and establishing a new court system, a national security court, overseen by civilian judges that allows for habeas appeals and focuses exclusively on trying the "quasi-warriors" picked up on the battlefield in the war against al Qaeda.
There are a number of premises to consider going into this discussion. First, that the war against al Qaeda is not a traditional war and the combatants on the other side, not traditional warriors. They are not wearing the uniform of any nation; they don’t fight under any recognized international laws of war. Second, the idea of indefinite, preventive detention floated by President Obama in his May 21st national security speech is an anathema to American rule of law and should not be considered just a bad idea, but rejected out of hand, as White House counsel Greg Craig told Jane Mayer back in February:
"It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," Craig said. "Our presumption is that there is no need to create a whole new system. Our system is very capable."
Third, military commissions have been so disastrous under the Bush regime that they should not be considered a viable option moving forward.
The Bush administration took advantage of the unique nature of the threat of al Qaeda to create an essentially lawless system--though Sulmasy would disagree with that assertion. Guantanamo was chosen as a detention facility precisely because it was extra-territorial; it exists in a no-man's land legally, where neither American nor international law really reaches. The Bush administration, many have argued, approached this war only thinking about the detention side--getting the bad guys. What we did with them when we got them was an afterthought. Thus making sure they were actually the bad guys and having the evidence to back that up wasn't even a thought.
The military commission system cobbled together when it became clear that the nation and the world expected the United States to behave lawfully proved utterly inadequate--three trial in seven years, one of them a plea bargain demonstrate that. As does the resignations of a number of Guantanamo prosecutors who condemn the system as rigged against defendants, with evidence obtained from coercion, torture and hearsay.
The resulting mess inherited by the Obama administration has to be cleaned up. President Obama's national security speech, coupled with his first day in office action of ordering Guantanamo closed within a year, signal the beginning of how the administration is thinking about doing so. The speech was also the starting point for my discussion with Sulmasy, a part of which follows, in lightly edited form.
Joan McCarter: What are your general reactions to President Obama's national security speech?
Glenn Sulmasy: I thought it was outstanding. He's grappling with the issues of our generation, certainly of this century and the proper balance between national security and human rights, and I think he extended that in his remarks and articulated in a very poignant way what he's up against and what he's inherited and how he is best going to handle the issues of national security and specifically his five point strategy, if you will, towards dealing with the mess in Guantanamo Bay. To a large extent I think it was a very pragmatic, reasonable approach, and one that I think reminds us all one way or the other that perceptions matter in the 21st century....
I would prefer in some ways-- the five point plan is very pragmatic and realistic and disciplined, and in some ways I think having one system that would these rather than necessarily having five different shots might be an area for the detention task force to review, to look further and deeper at .
JM: given the different status of so many of these detainees, do you think it's possible to have just one system?
GS: I think they have decided that it's not, and certainly that's one of the items, the flaws of the military commissions--was trying to put everyone into a military commission.... It's an evolution of justice, so I think we're all trying to grapple with what to do and that's something happening on the international level as well, about how best to handle these. In many ways it may not be, but if we're going to go back and look at the MCA and we're going to go back and look at how best to amend the MCA to best meet the needs of the president's desires for using military commissions, my suggestion would be this shouldn't be off the table, and perhaps there are five different ways, but one area we should look at is the potential for having a national security court system for the dilemmas we're facing. Particularly for those as he noted, for those that he isn't comfortable with trying either in military commissions or in civilian courts. My area, which I think you can tell from the book, is focused on very specifically the idea that I'm not in favor of preventive detention. I think that is a danger that we don't want to--
JM: And Obama left the door open in his speech for preventive detention.
GS: My sense, Joan, is that he left the door open. I obviously am fairly passionate that that's not the best handling of our desire to regain the initiative in terms of regaining our role in the world as a promoter of human rights. I understand the need for it in a traditional armed conflict. This isn't a traditional armed conflict.
What I suggest, which is really kind of a compromise between all the different areas is to have a presumptively adjudicatory system and the presumptive adjudicatory would be that we try everybody, and it may not be right away, we might be realistic on the national security front to allow intelligence professionals to review and look at, interrogate or interview certainly not coercively but just in general to get information which is essential to protect the national security. But within a year of capture top begin trials and within three months have a habeas proceeding before a civilian judge, but a civilian judge who is learned in this niche area of the law....
I think what they're looking for right now is what do we do. He didn't say he was going to use preventive detention, but as you said, left the door open, and now it's time to kind of grapple with what and how we best deal with this.... I think what I offer...the national security court or some other term, maybe terrorist court or a trial court would be used in this capacity, rather than in him unnecessarily embracing preventive detention in this.... That he would try everybody, and if these people are really that dangerous then we should still get as much information as possible.
But if we have that court system that is set up properly, that is able to handle these sorts of complex cases, with understanding that everyone has a right to a trial and that would help us to regain the initiative in terms of the promotion of human rights and the American standing in the world. Part of this is, a lot of folks will argue that this is sovereignty issues, that this is American and if we want to try we should do whatever we want, but perceptions matter in the 21st century and it's incredibly important that we're conscious of that if this is truly some sort of armed conflict that we're engaged in.... It's an international effort and we need our partners to support us and we can't do this unilaterally. If we aren't able to garner the support of our international colleagues then all of this will be futile.
JM: Do you know what's being looked at internationally to rethink the laws of war in regards to this new kind of war?
GS: . . . I think we should leave the laws of war as they are. I think we should leave our civilian justice system as it is. But . . . the national security court can't be done in isolation or in a vacuum, it's incredibly important that we, that the U.S. takes the lead, in just taking a look at the Geneva Conventions and opening a review and there is movement in that direction, slight. Georgetown University Law Center domestically is engaged in this as well, to say wouldn't it be perhaps maybe not another protocol but at least have meetings of international engagement to show the U.S. is listening. And the result of such an international engagement in reviewing this will take time, and I'm not naive enough to think it would happen in three or four years but to begin the process of perhaps looking at if Common Article Three definitively applies, look at Article 75 of the AP 1C, that's customary international law and that should apply. But it's important that we just don't do just a national security court or a military commission or a civilian court, that in conjunction with doing it there has to be broader review of where do these people stand.
JM: How feasible do you think it is to start now with a completely new way of dealing with the Guantanamo detainees and all of the baggage that comes with it?
GS: I think a clear cut away in doing it is to close Guantanamo and that does send the right signal. The President, I thought sent the right signal by announcing it up front at the beginning of his administration. I think we don't necessarily have--we're going to have baggage no matter what we do, right now and for a period of time....
We're evolving and it's maturing our analysis of this threat is maturing, maturing intellectually and culturally and as it's maturing I think this is the next step in an evolution. Over time there are other venues that might be better than just the US taking this on since it is a global threat and we should not be uncomfortable with looking at the ICC in the future. But right now the president has to deal with what he has in front of him and what's the best way to do this and I think the best way to handle this is to close Guantanamo and to try the detainees in some sort of a process that would ensure that trial does occur and that's fair, that is as good or better most countries in the world in terms of the due process rights afforded to the detainees. But at the same time understanding that it's not an ordinary criminal that we're dealing with. They're not prisoners of war in the traditional sense, they're not traditional warriors, they're not criminals in our understanding, or even--in some ways I always try to distinguish between terrorist who use terrorism as a tool for revolution, and use that as a tactic for engaging in domestic revolution.
This is an international threat to the western way of thinking and the western process, western culture and if we . . . over time as the military commissions have evolved--Washington to Lincoln to Roosevelt to Bush, and we realized they are used in traditional armed conflict, we realize that maybe this isn't fitting right, maybe this is jamming a square peg into a round hole and have to look to the next way, to the third way to best accomplish immediate needs in Bagram and Guantanamo, because as you know it's not just Guantanamo that's the lightening rod. Bagram is starting to creep into the media more and more as we realize there are thousands more in Bagram and we have a way to handle these without allowing us to continue to erode the international standing of the US because there are so many other areas in the world we need to be leading in. This is just hampering our ability to lead effectively in those other areas. . . .
JM: Explain to me, as a non-lawyer, why courts martial won't work for the detainees--why can't we try them in a more legally valid system than a military commission or your hybrid model? Why giving them status as POWs won't work?
GS: I think for two issues.... You have a military officers sitting judgment over what is really a civilian in many capacities and to put it into a military commission process or into a court martial, what that does is to send a signal--it will never allow us to regain that initiative to have civilian oversight and civilian judges overseeing the process, I think there's a sense and an appearance that's inappropriate for this. A second issue is the courts martial ... the military rules of evidence are analogous to the federal rules of evidence, so that the evidentiary issues--it's a civilian process in many ways. So we'd have the appearance of military officers overseeing person who is not wearing a uniform, who is in civilian garb with 2/3rds to convict--a lesser standard than would be in our traditional systems. Those differences like that would matter... I think courts martial are tremendously fair . . . but they're not equipped to properly handle this threat that we have/
To call them POWs would be problematic as well because they are not. POWs in a traditional armed conflict are those that follow the laws of war. Here we have non-traditional, quasi-warriors who not only flout the laws of war but actually engage in what is a doctrine to flout the laws of war and are proud of it. It's something that they're taught, how to take advantage of our laws of war to best accomplish their ends. And I think it's unnecessary if you will. What we want to try to get away from, and even if we go to courts martial, which I think is a great idea, what I think if we look at it--there is two schools f thought: you have the law of war regime or you have the law enforcement regime.
JM: I think we do still have the serious political problem, the perception problem in the lack of any kind of legal status for the existing detainees, the limbo that they're in, and I think that if we could provide a classification for them that is based in law it would help us going forward. I think from this point on, the national security courts and the system you are talking about makes sense, going forward as we prosecute this war against al Qaeda. I'm not sure that it answers our current problem with the Guantanamo detainees.
GS: As I said, it can't be done in a vacuum. The president has already changed the name of the war, he's not using the war on terror so that's starting to evolve. If we call for an international conference that would certainly be a way, but I think for now this offers the best means. If we are going to back to tinker with the MCA, Congress has a responsibility right now, the president can't--many folks are uncomfortable right now with the president just ordering these because we've seen over the last seven years the concern about the growth of executive power, it's really the Congress that needs to step up and work with the administration and best find a solution. I think the fear of not doing something now and not moving forward and being mired in the same debate two years from now.... I think Congress needs to step up to the plate. There's no easy answer....
JM: Particularly when you look at the evidentiary issues we have because of coercion, torture, or just a total lack of chain of evidence.
GS: The problem becomes... that there are some that have certainly been coerced in some capacity, where trying them in a traditional court is going to become difficult. And in the article III court it would be almost impossible. I think that's what the task force is looking at. What do we at this point now. What do we do with them and then what process we would use and I don't think we're even at the what would we use yet, in many ways.
My sense, it's what do we do with what we want to do. The options are all on the table. Try them, try them in some kind of new court, have them in a court for indefinite for preventive detention, which again I think would never be the correct process to go forward if their not prisoners of war, if they're not traditional warriors in a traditional armed conflict then we shouldn't use that certainly. And again, as you know the end of hostilities in this is undeterminable at this point, it's unascertainable which makes something like an indefinite regime more difficult.
JM: Right, and that's where the discomfort comes in from a civil libertarian standpoint, of leaving the potential open for indefinite detention, for preventive detention and for a never-ending war where going back to the Geneva Conventions, the UCMJ, having them have an actual legal status, recognized internationally, seems imperative.
GS: I agree, I think that one of the items when you look at that some of these are actual al Qaeda fighters, folks that are saying that they want to go back and attack, so I think that's where the administration is looking saying, "I can't just release them." It's saying "Trust me, I won't let them out." But I think that if you have a court system that does allow as much intelligence to be garnered as possible and tries them in a new court system like we have special courts for bankruptcy, like for immigration, this is a niche area in the law.
Ten years ago, if we're talking national security law you'd think I was just some sort of military guy. Now we have constitutional scholars, we have all folks meeting in this national security debate, and when he looks at this and recognizes "I don't want to rule out any options," I think one of the options, if he looks at a national security court, should be adjudicatory, embracing that preventative detention regime--although I understand why people would look at it that way, if it's set up properly and we try them and they are convicted, if we have enough evidence to try them and they're convicted and they're in jail for thirty years then the issue is moot.
Part of the problem of the erosion of domestic support and international consensus on Gitmo was three trials in seven years and one of those three trials was a plea-bargain. People look to the U.S. to try people, and my fear would be if you bring those 50 to 100 into our traditional court system, you're going to wind up having acquittals just because all of the normal constitutional protections we'd imbue to us and to others. It would be almost impossible in many ways because some of these are folks we did capture in a battlefield....
I think if Congress sets this up, and they sunset it . . . I think having these court systems to sunset might be a way to allay some of those concerns if Congress does embrace this as a way to go.
Sulmasy makes a good case for addressing this very thorny issue moving forward, through the use of special, dedicated courts. I remain unconvinced, however, that carving out a third way of proceeding to prosecute the Guantanamo detainees is an advisable political decision, particularly considering the highly politically charged atmosphere around this issue in this Congress. The debacle of even trying to transfer them into highly secure American prisons creates some skepticism about Congress's, particularly the Senate's, ability to create a new system that would put the legal rights of these men on equal footing with national security.
Putting the structural political issues aside, there would also be the ongoing perception problem of the appearance of cobbling together yet another system to prosecute detainees. In order to regain the respect, and the cooperation, of the rest of the world in what is going to be a long-term fight against international terrorism, restoring the rule of law is essential. A national security court system could certainly be structured to provide every possible legal protection to detainees, but we run the risk of creating the perception that the United States is creating yet another legal system to make sure that it can keep these men imprisoned for the duration of the war, however long that might be.
A case can be made that a fair, constitutional detention regime which conforms with our obligations under the Geneva Conventions can be implemented under existing structures. I disagree with Sulmasy's assertion that the combatants detained in this war could not be considered POWs. Fair status reviews could be conducted by the administration with those 50-100 detainees whom the government believes still pose a threat, and they could be classified as POWs, giving them an existing, legal status under the Geneva Convention, and as prescribed in Boumediene v. Bush.
We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.
. . . For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963) , overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992) . Here that opportunity is constitutionally required.
In this issue, I think the administration would do well to look at the weight of case law as decided by the Supreme Court in cases including Rasul, Hamdan, and Boumediene not to find the means of legislating around the decisions, but rather complying with existing law. That includes the Geneva Conventions. In some ways, these decisions can be made either as difficult or as simple as possible, and much of that depends upon the political will of the administration. Under the Bush regime, the political will allowed for straightforward, but disastrous, decisions to prosecute as much of the war as possible outside existing legal bounds, and to try to retroactively legalize them (i.e., the torture memos, the Military Commissions Act).
The Obama administration could, in turn, determine that it will choose to prosecute this war and dispense with all existing detainees within the bounds of existing law. That would mean fair status review hearings that should be able to determine whether a detainee poses an ongoing threat to our national security. If the evidence exists or could be obtained to conduct that review under a national security court, it should exist now to satisfy our existing legal structures.
Going forward, I believe creating a national security court system could be a way of regularizing the conduct of this war, an action that is imperative to regaining our status in the world. As critical as all of the other issues on Mr. Obama's plate are--the financial crisis, health care reform, energy reform, educational reform--few have the same resonance around the world as how the nation deals with the prisoners in this war, and how it sets the stage for prosecuting a war that as of yet has no end point.