ABA Is ‘Place of Refuge from Polarization’ On Detainee Policies, Panelist Says

Moderator Harvey Rishikof, a professor of national security studies at the National War College, and Elisa Massimino, executive director of Human Rights First, welcome a question from the audience, at "Obama's Detainee Policies: Views from Inside and Out."

Annual Meeting Program Explores Obama Policies, from Inside and Out

Among many questions remaining unresolved in dealing with persons detained as suspected terrorists post 9/11 is how to distinguish between conduct of “unlawful combatants” and that of criminals.  Another goes to where such cases can and should be tried.

Neither was answered in a discussion of “Obama’s Detainee Policies:
Views from Inside and Out.”

This and other programs convened by the ABA while national policy regarding detainee policy has unfolded over time have made the ABA “the place of refuge from intense polarization without any sense of pragmatism about how we can resolve these problems,” said Elisa Massimino, executive director of Human Rights First.

Panelists Massimino and David Graham, executive director of the Army Judge Advocate General’s Legal Center and School, joined Robert Chesney, who teaches national security law at the University of Texas at Austin and currently is with the Department of Justice supporting the Detainee Policy Task Force.

Opening the program, Graham identified four prongs to the dispositive process for dealing with detainees at Guantanamo Bay, Cuba.  He listed repatriation, either to a country of origin or a third country; trial of some individuals in Article III U.S. courts; reformation of the military commission process to try other detainees; and an anticipated administration policy allowing prolonged detention of persons who cannot be tried but are too dangerous to release.  He posited the question whether the Obama Administration “will continue to persist in its contention that the U.S. is and remains involved in an armed conflict with the international organization Al Qaeda.”  Grahan said the federal Detention Policy Task Force came up with the wrong answer:  Yes.

That answer “turns terrorism offenses into military offenses,” or violations of the law of war, said Graham, and may not allow prosecutors and defense lawyers to submit the best evidence in cases.   He also noted the issue of admissibility of evidence obtained through coercion, saying “coercion is a given, what decides is the degree of coercion involved.”

Chesney cited what he called the top 10 Myths Associated with Detention Policy.  He started with what he said is a mistaken belief that federal criminal prosecution is not suited to terrorism prevention.  Among others:  strict reliance on civilian criminal prosecution would be a clear victory for civil liberties; criminal prosecution is only a problem because the U.S. abused detainees; continuity of policy of the current administration must be an endorsement of policies of the prior administration; there is no continuing strategic threat to the UnitedStates that warrants the attention being paid to Guantanamo detainees.

Chesney suggested the debate about detainee policy “has been captured by the loudest mouths on either end of the political spectrum,” and the individuals behind those voices “have a vested interest in stoking the debate.”

Massimino urged listeners to recognize “a broader context” of import in resolving the issues, the context being the impact of U.S. policies and procedures on how governments around the world distinguish between political dissent and military conflict.  “Many governments have their own wars on terrorism,” and there is a danger of other countries, some with less noble intent, copying definitions that are becoming entrenched in U.S. responses to our war on terror.

“One of the things that lead us off the path after 9/11 was the desire to think outside the box,” she said.  “The box is the Constitution.”

Massimino said the Obama Administration is taking the country in a new direction, but complex problems “don’t become less so because a new person is in the White House.”

Massimino suggested the panelists agreed on several basic points.  Preventive detention is neither exotic nor unusual.  It is “uncontroversial in the law of armed conflict.”  Also, the laws of war are very clear, she said.  Where differences arise is on defining the field of conflict.

She asked why regular federal courts can’t deal with detainee cases, saying they are “very adaptable,” and “quite effective in meeting particular challenges.”  While Massimino said the criminal justice system is not the total answer, it has been underutilized.  She suggested that as many cases as possible should be moved to the criminal justice system to delegitimize Al Qaeda as a military power.

“We have been somewhat in the thrall of believing Al Qaeda is a super human threat.  The fear factor has lead to policies that undercut our war on terror,” and to treating “Al Qaeda as warrior, rather than the criminals they are,” Massimino said.