Abrams seeks to move the discussion on Guantanamo detainees forward by bringing law-of-war detention and criminal prosecution into closer alignment. The article analyzes the Obama Administration’s current approach of dealing with terrorists captured abroad and its preference for conducting criminal prosecutions whenever feasible. Abrams proposes several changes to the current system, including a decision-making framework for imposing further military detention after completion of the criminal process, which the administration has indicated is a possibility, and taking into account the criminal culpability of the detainee to impose a presumptive limit on indefinite detention, as ways to reform the two-track system and increase equality accordingly.
This article explores the tension between the policy objectives of United States counterterrorism efforts (deterrence, incapacitation, and intelligence gathering) and the traditional legal frameworks used to justify them (the law of war and the criminal justice model). All three branches of government, the author urges, have worked at cross-purposes in developing a counterterrorism policy that sacrifices legality and principle. A better approach would be to adopt a hybrid, flexible framework that recognizes that terrorism is a serious threat requiring the use of the law of war in some cases but protects against government overreach by relying on the best instincts of the criminal justice model and its promotion of our core values of freedom and liberty.
The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture. A full-scale investigation, preferably by an independent commission not part of the very department implicated in the wrongdoing, is still necessary. Great Britain conducted such an independent inquiry into the abusive practices used against IRA prisoners in the 1970s, and the United States must do the same. The essential lesson must be that torture and cruel treatment are not policy options, even when lawyers are willing to write opinions blessing illegality.
At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies. Six months later, the new Administration has not done so. Rather, it has acted in a contradictory manner: boldly asserting in its first days that it would ban torture and close Guantánamo, but in practice continuing many of the Bush antiterrorism policies. President Obama’s major speech on Guantánamo and other national security issues reiterated his desire to close Guantánamo, but also argued that the United States could hold detainees in custody indefinitely without trial or try them by military commissions. The Administration has adopted the Bush administration position that detainees held in U.S. custody in Afghanistan indefinitely have no right to seek habeas corpus in U.S. courts. It has also continued to assert the state secrets privilege to attempt to block lawsuits seeking accountability for extraordinary rendition and torture.
By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …