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October 22, 2008 Beyond the Bush Administration: International Law in the 2008 Presidential Election By Anthony Dworkin
Senators Obama and McCain have promised to close the Guantanamo Bay detention centre and they have both given clear indications that they would forbid the use of torture or inhumane interrogation by US personnel. Beyond these common positions, though, there are significant differences in the way they would approach the future of the US campaign against al-Qaeda, as well as some differences on other issues of security law. The Legacy of the Bush Administration The election comes at a moment when the future shape of President Bush’s declared “war on terror” is already uncertain. The Bush administration initially argued in the months after the attacks of September 11, 2001, that captured terrorist suspects could be held indefinitely as “enemy combatants” without any procedural hearing, or tried before military tribunals that offered much weaker due process guarantees than US civilian courts or military courts martial. In the face of a series of Supreme Court rulings, the administration gradually scaled back its claims, setting up limited hearings to rule on the detainees’ status (known as Combatant Status Review Tribunals and Administrative Review Boards) and agreeing with Congress a statutory basis for the military commissions that included a minimal level of civilian review. Recently, in its ruling in the Boumediene case in June 2008, the Supreme Court raised the prospect of further and more radical judicial scrutiny of the Guantanamo regime. By recognizing that detainees at Guantanamo had a Constitutional right to challenge the grounds of their detention in US federal courts through the process of habeas corpus, the decision opened the way for America’s judiciary—ultimately, no doubt, the Supreme Court itself—to rule on the fundamental questions of who could lawfully be detained by the government, for how long, and what procedures were necessary to establish their status. At the same time, especially since Robert Gates replaced Donald Rumsfeld as Secretary of Defense in December 2006, the Bush administration has publicly adopted a position of wanting to close the Guantanamo Bay detention camp. However, as Gates confirmed in a Senate hearing last May, its efforts have become “stuck and... stuck in several ways.” There are currently thought to be 255 detainees at Guantanamo, and the government has divided them into three categories. In the cases of some 60 to 80 men, according to an interview that the legal advisor for the military commissions gave to the New Yorker, there is thought to be enough evidence to prosecute them before the commissions. Officials say that another 70 or so have been identified as potentially eligible for transfer to their own country or a third country, if a country can be found that is willing to take them, will not abuse them, and that will keep them detained if necessary. That leaves a hard core of an “irreducible 70 or 80,” in Robert Gates’ words, whom the US does not want to release for security reasons but who are not thought suitable for prosecution, either because there is no admissible evidence against them or because they cannot be charged with any offense that was a crime at the time they committed it. There have apparently been fierce internal arguments within the Bush administration about whether these detainees should be transferred to American soil. According to the New York Times, the officials who opposed any plans for transferring the men prevailed. Restoring the Rule of Law This is the background against which the next president will have to determine his policy. Of the two candidates, Barack Obama presents the strongest contrast with the Bush administration’s approach. Obama has avoided talking of a “war on terror,” although he has called for a determined military effort to capture or kill al-Qaeda’s leaders. According to an advisor familiar with Obama’s thinking, he is sympathetic to the argument that the rhetoric of a war on terror plays into al-Qaeda’a hands by elevating the group's status. In general, Obama’s comments and those of his advisors suggest that he is likely to seek an approach to global terrorism that allows for military action where necessary, but with much tighter legal oversight than is the norm in conventional armed conflict. Obama has repeatedly called for the restoration of habeas corpus rights for the Guantanamo detainees. When the Supreme Court recognized that the detainees had a Constitutional right to habeas, Obama welcomed the decision, saying that it ensured “that we can protect our nation and bring terrorists to justice, while also protecting our core values.” Obama has also opposed the military tribunals set up at Guantanamo Bay; he voted against the Military Commissions Act in 2006 that put the tribunals on a statutory basis and has said that “our civilian courts or our traditional system of military courts martial are best able to meet this challenge and demonstrate our commitment to the rule of law.” An Obama administration could therefore be expected to assess the evidence against the detainees, transferring those that could be charged in US federal courts into the domestic prison system, and those to be prosecuted for war crimes before traditional military courts-martial into military detention within the United States. Obama’s advisors also suggest that his administration would make a renewed effort to return many of the detainees to their own countries or to third countries, hoping to build on the international goodwill that would be generated by the arrival of a government not associated with the excesses of the “war on terror” and that was moving quickly to close Guantanamo. However there is no indication that an Obama administration would either charge or release all detainees, as human rights organizations have advocated, at least not in the early stages of his presidency. Susan Rice, one of Obama’s leading foreign policy advisors, told NPR in June that it would be “foolish to speculate” before the election about the numbers that that they might need to continue holding without charge, since Obama did not yet have “the benefit of classified information about the nature of the detailed cases against each of these individuals.” Obama’s policy platform on terrorism appears to concede that some detainees may continue to be held without trial for some time, saying that as president Obama “will develop a fair and thorough process… to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries.” Of course, the next administration will be constrained by whatever rules the American courts ultimately lay down for the detention of terrorist suspects. However, as explained in this earlier article, it is likely that the courts will recognize that the United States has the right to detain some terrorist fighters, albeit perhaps a more narrowly defined group closely linked to al-Qaeda who continue to pose an individual danger to the United States. It is possible that an Obama administration might move to overhaul the procedures used to determine whether detained suspects are really “enemy combatants” subject to detention, even in advance of any requirement imposed by the courts. A Mix of Crime and War On the central issue of detention, the prospect of an Obama presidency does not promise a return to a “law enforcement” approach to terrorism. Instead, the indications are that Obama would move toward a hybrid model that merges existing legal norms from American constitutional law and the laws of armed conflict. On a pragmatic basis, his administration might hope to scale back the numbers held in detention to a level that international opinion might regard as less offensive. His campaign has never suggested that, taken together, international and domestic law does not provide an adequate basis to deal with the threat of terrorism. One area where Obama would probably move quickly to implement new procedures is in the area of interrogation. Obama has expressed support for restricting all US personnel, including CIA agents, to those techniques listed in the Army’s interrogation field manual (though he did not vote on the measure when it came before the Senate in March 2008). He has also suggested that he would launch an official review of Bush administration practices that might have violated laws against torture and inhuman treatment, though he might not seek prosecutions of those involved. In an interview with the Philadelphia Daily News in April 2008, he said that "if crimes have been committed, they should be investigated…. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve." More recently, however, Obama’s vice-presidential running mate Joe Biden said that "If there has been a basis upon which you can pursue someone for a criminal violation, they will be pursued.” In any case, there has been much speculation that President Bush might issue a pardon for any officials involved in the interrogation programme for al-Qaeda detainees before leaving office. The War Model Refined While also promising to close Guantanamo, John McCain has offered a rather different perspective on the US campaign against terrorism. McCain and his advisors appear to regard the struggle against al-Qaeda much more clearly as a war. McCain’s two closest Senate colleagues, Lindsey Graham and Joe Lieberman, introduced a bill last summer that reaffirmed “that the United States is in an armed conflict with al-Qaeda, the Taliban and associated forces” and that “the President is authorized to detain enemy combatants in connection with the continuing armed conflict... regardless of the place of capture, until the termination of hostilities.” It can be assumed that they would not have introduced the measure without McCain's encouragement. McCain has called for the detainees at Guantanamo to be moved to military detention in the United States, suggesting that the military prison at Fort Leavenworth, Kansas, might be an appropriate place: “I would move those prisoners to Fort Leavenworth,” he told CBS 60 Minutes in April 2008. He has also strongly backed the use of military commissions to try the detainees. He voted for the Military Commissions Act in 2006 and has called repeatedly for the military trials to be speeded up, saying that he would “truly expedite the judicial proceedings in their cases.” When the Supreme Court awarded habeas rights to the Guantanamo detainees in the Boumediene case, McCain strongly attacked the opinion, calling it "one of the biggest mistakes that's been made in terms of our ability to defend our nation in a long, long time." He also said, “These are enemy combatants… They do not [have] and never have been given the rights that citizens of this country have. And, my friends, there are some bad people down there.” An apparent peculiarity of McCain’s position is that, if the detainees were moved to Kansas as he has called for, they would be on US territory and would unquestionably be able to file habeas petitions, as Ali al-Marri, a Qatari citizen held as an enemy combatant in South Carolina, has done. On the face of it, McCain appears to support closing Guantanamo because of the stain it has cast on America’s reputation, but transferring the Guantanamo regime more or less wholesale into the United States, with whatever modifications are imposed by US courts in the habeas cases that are now making their way through the system. (It is also possible that further Constitutional protections that would apply inside the United States could require other changes, for instance to the military commissions.) But there have been some indications that McCain and his advisors would look beyond current rules on detention and trial for a new approach. In a major foreign policy speech in March 2008, McCain said the United States should “work with our allies to forge a new international understanding on the disposition of dangerous detainees under our control." According to informed sources, he and his close advisors were impressed by a January 2008 article by the international lawyer Nicholas Rostow on restoring America’s global reputation as a law-abiding nation; Rostow is now an advisor to McCain’s campaign. In his article, Rostow called for detained terrorist suspects to be treated according to the Geneva Conventions, so that they would be either detained as prisoners of war or prosecuted for crimes before courts with full Constitutional rights. He also called for “a new international conversation on the issue of categorization” that would show America’s determination to conduct the struggle against terrorism within the rule of law. McCain played an important role in imposing limits on the coercive interrogation of prisoners during Congressional debates on the war on terror. He sponsored an amendment in 2005 that reaffirmed restrictions on the use of cruel and inhuman treatment against any detainee held in American custody anywhere in the world, and fought a successful action to prevent the 2006 Military Commissions Act from diluting the application of Common Article 3 of the Geneva Conventions to American action in the fight against al-Qaeda. McCain has stated frequently that he regards waterboarding as torture; in February 2008 he said that “it is clearly illegal and... we should publicly recognize this fact.” However he voted against the bill requiring CIA agents to use only interrogation methods listed in the Army interrogation field manual, saying that “what we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.” Looking Again at the ICC Beyond its policies against terrorism, the Bush administration has also provoked international criticism for its opposition to the International Criminal Court. In 2002, the United States effectively withdrew its signature of the ICC treaty by declaring it did not intend to submit it for ratification, and launched an aggressive campaign to persuade other countries to agree that they would not hand over American citizens to the Court. In the last few years, however, the administration’s tone has changed. It did not attempt to block a Security Council resolution in 2005 that referred the situation in Darfur to the ICC, and has recently threatened to veto any resolution that sought to suspend the Court’s investigation of Sudanese president Omar al-Bashir. Last April, State Department Legal Advisor John Bellinger gave a speech in which he said that "the U.S. must acknowledge that the ICC enjoys a large body of international support, and that many countries will look to the ICC as the preferred mechanism" for punishing war crimes on an international level. Bellinger also said the United States was “prepared to consider” helping the Court’s investigation in Darfur. Both Obama and McCain have echoed this more favourable attitude to the ICC, but neither has gone as far as promising that they would take the United States into the Court as it stands. In a speech to the World Economic Forum in 2005, McCain said, “I want us in the ICC but I am not satisfied that there are enough safeguards.” It is not clear how he expects to persuade parties to the Court to change its statute to accommodate American concerns. Obama wrote in a statement to the American Society of International Law earlier this year that he would “consult thoroughly with our military commanders and also examine the track record of the Court before reaching a decision on whether the U.S. should become a State Party to the ICC.” Short of becoming a party to the Court, there are additional steps that the United States could take to engage with it more fully. As Bellinger indicated, it could offer help with the investigation in Sudan: in an op-ed piece co-written with Bob Dole in 2006, McCain said that "U.S. and allied intelligence assets, including satellite technology, should be dedicated to record any atrocities that occur in Darfur so that future prosecutions can take place." The United States could also participate as an observer in the working group that is discussing whether aggression should be included as a crime under the Court’s jurisdiction, and how it should be defined. Both candidates might well send American observers to this working group, since it is obviously a subject of importance to the United States, and there are no reasons not to take part except for the fear of appearing to give credibility to the Court’s workings.
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