Notes and Questions for Guantanamo Diary
Legal Responses to Terrorism, Fall 2015
Jonathan Witmer-Rich
First Assignment: Purchase Mohamedou Ould Slahi, Guantanamo Diary (Little, Brown 2015). Read “A
Timeline of Detention,” “Notes on the Text, Redactions, and Annotation,” and the “Introduction.”
The following notes and questions are meant to help guide your reading and focus your attention on
certain questions that will recur throughout the semester:
1.
Institutions, the Executive, and Alphabet Soup
Throughout this book, and the course, we will repeatedly pay close attention to different groups within
“the Executive”—such as the DOD, the CIA, the NSA, the FBI, and the DOJ. (In the field of national
security, there is a staggering “alphabet soup” of abbreviations.) Often in law school we focus on
interactions between the three branches of government—the President, Congress, and the Judiciary.
We will also do some of that in this class. But in the field of national security, much of what happens—
including the development and debates over applicable legal standards—happens solely within the
Executive Branch.
Consider this passage on page xxxv:
“Almost immediately a schism opened up between military interrogators and the FBI and
Criminal Investigation Task Force agents who had generally been leading prisoner interviews in
Guantanamo. In September and October [2002], over the fierce objections of the FBI and CITF
agents, the military set up its first ‘Special Projects Team’ and developed and written plan for
the interrogation of the Saudi prisoner Mohammed al-Qahtani. That plan incorporated some of
the ‘enhanced interrogation techniques’ the CIA had been employing for several months in its
own secret prison.”
When you read something like this, ask yourself: who are the “military interrogators”? What is the FBI?
(I think you know that one.) What is the CITF? (That one is harder.) If you don’t know the answer,
google it. Figure out who these actors are. Then try to figure out why they are disagreeing with each
other—they all answer ultimately to the President, why doesn’t he sort out any problems? What is their
institutional perspective? Their past experience? What is the mission of their agency?
These questions are critical for helping us assess key questions of institutional design: who should make
tough decisions like this, and how should those decisions be made within the complex agencies that
make up the Executive branch of our government?
A related question we will consider throughout the course: Many important legal issues involving
national security are never reviewed by a court (and never will be). Yet the legal issues remain, the
various actors within the Executive branch work hard daily to articulate and follow—and sometimes
evade—those legal standards. How do legal restraints function (if at all) in contexts in which there is no
independent court that adjudicates and enforces the legal rules?
2.
Rhetoric in the War on Terror
On page xxxi (Introduction), Larry Siems quotes an editorial by the New York Daily News objecting to
Judge Robertson’s grant of the writ of habeas corpus to Slahi. Specifically, the Daily News editorial
describes Slahi as “possibly being a man whose guilt was certain but unprovable beyond a reasonable
doubt thanks to squeamishness over evidence acquired under rough treatment.”
What does this statement mean? Are there any legitimate concerns conveyed in that statement?
The editorial next states: “What was the rush to release? The judge could have waited, should have
waited, for the country to understand why this had to happen before exercising his legal authority.”
Does Judge Robertson’s order represent a “rush to release”? And what does the second sentence above
mean?
(By the way, what does the phrase the “war on terror” mean?)
3.
Different Legal Responses to Terrorism
The introduction describes the complex legal history surrounding Slahi’s detention (a history that is not
yet concluded). Part of what makes his case—and others like it—so hard to understand is the many
different legal systems that apply or could apply to his case.
Here is a brief explanation of some of the key legal systems/concepts at play:
a. Article III Criminal Prosecution: often an act (or planned act) of terrorism violates particular
criminal statutes. If so, the President (through the DOJ) can respond to terrorism by filing
criminal charges in a U.S. federal court, and seek a conviction and sentence for suspected
terrorists. In the counter-terrorism context we often refer to this as an “Article III” prosecution,
referring to Article III of the Constitution—which establishes the judicial branch. This refers to a
criminal prosecution in a regular federal court (with a judge appointed under Article III), rather
than some other option such as a military commission.
As you will see, criminal charges have never been filed against Slahi. Start thinking about why
not.
b. Military Commission: another option is to try to prosecute suspected terrorists in a military
commission. We will study this option at greater length. For now, note that military
commissions have a long history, but can be invoked only in particular circumstances. Military
commission prosecutions are limited to prosecutions that meet all of the following conditions:
(1) the act occurred during an armed conflict; (2) the act occurred in the theater of combat; (3)
the defendant is a combatant in the armed conflict; and (4) the act is a war crime (a crime
triable by military commission).
The introduction notes that the government considered filing charges against Slahi in a military
commission, but (so far) has not done so. Start thinking about why not.
c. Preventive Military Detention: during an armed conflict, the parties to the conflict have (under
long-standing international law) the power to capture and detain enemy soldiers. Thus during
World War II the United States captured and detailed German soldiers, and vice versa. This is
preventive military detention. The purpose is not to punish a captured combatant, but simply to
prevent that soldier from returning to the battlefield. Generally speaking, a state can detain a
combatant captured during an armed conflict, and may detain that captive until the end of
hostilities (at which point the soldier must be released).
This is the legal justification used by the Bush Administration and the Obama Administration for
detaining Slahi (and the other Guantanamo Bay detainees).
Many detainees (including Slahi) filed a petition for a writ of habeas corpus in federal court in
D.C., challenging the legality of their detention. The government responded by arguing that the
detention is lawful as a form of preventive military detention. Judge Robertson (who is
discussed in the introduction) was the judge assigned to Slahi’s case. (Incidentally, Judge
Robertson is the father-in-law of Professor Heidi Gorovitz Robertson.)
Thus when Judge Robertson granted Slahi’s habeas petition, he determined that the
government had failed to prove that Slahi was in fact a combatant in an armed conflict.
These three legal regimes are in a sense separate, independent, and non-exclusive. That is to say, it may
be true for a given detainee that all three of these options could be pursued, or only one or two of
them, or none of them. The fact that criminal charges could be filed does not mean military commission
charges cannot be filed; the fact that military commission charges could be filed does not mean that
criminal charges cannot; the fact that a person is subject to preventive military detention does not mean
he can be prosecuted in either an Article III criminal court or a military commission.
To make sense of what is happening (legally) with Slahi or other detainees, you must first understand
these three systems. Often in discussions and debates over detainees, commentators shift from one of
these systems to the other and back again, often without admitting (or realizing) they are doing so, and
often without even a basic understanding of the strengths and limitations of each system.
One major goal in the course is for you to gain a good understanding of these three different systems:
their powers and limitations, strengths and weaknesses. With that understanding, you can form more
informed and substantial opinions on which of these tools (if any) should be used in response to
terrorism, and when.