No Comment — March 29, 2010, 3:34 pm

Rift in Obama Counterterrorism Policy?

The New York Times’s Charlie Savage attempts to chart the policy differences inside the Obama camp and between Obama lawyers and career legal staff on issues relating to counterterrorism policy. Here’s the core of the article:

In March 2009, the Obama legal team adopted a new position about who was detainable in the war on terrorism — one that showed greater deference to the international laws of war, including the Geneva Conventions, than Mr. Bush had. But what has not been known is that while the administration has stuck to that broad principle, it has been arguing over how to apply the body of law, which was developed for conventional armies, to a war against a terrorist organization. An examination of that conflict offers rich insight into how the team of former law professors and campaign lawyers, nearly all veterans of the Clinton administration, is shaping important policies under Mr. Obama. In February 2009, just weeks after the inauguration, John D. Bates, a federal judge overseeing several cases involving detainees in Guantánamo Bay, Cuba, asked a provocative question: Did the new administration want to modify Mr. Bush’s position that the president could wield sweeping powers to imprison people without trial as wartime detainees?

Career Justice Department lawyers handling Guantánamo lawsuits feared that rolling back the Bush position might make it harder to win. And the new acting head of the department’s Office of Legal Counsel — David Barron, a Harvard law professor and co-author of a lengthy law review critique of Bush administration claims that the commander in chief can override statutes — worried that Judge Bates had given them too little time to devise the answer. But the White House counsel, Greg Craig, a campaign adviser to Mr. Obama who had been a foreign policy official in the Clinton administration, saw this as an important opportunity to demonstrate a break with Mr. Bush. And at a White House meeting, Mr. Obama weighed in, declaring that he did not want to invoke unrestrained commander-in-chief powers in detention matters. With the president’s directions in hand, Mr. Obama’s Justice Department came back on March 13, 2009, with a more modest position than Mr. Bush had advanced. It told Judge Bates that the president could detain without trial only people who were part of Al Qaeda or its affiliates, or their “substantial” supporters. The department rooted that power in the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks. And it acknowledged that the scope and limits of that power were defined by the laws of war, as translated to a conflict against terrorists.

Savage also discloses that former Yale law dean Harold Koh, now the legal adviser in the State Department, prepared a classified memo, apparently arguing that “there was no support in the laws of war for the United States’ position in the Bensayah case.” That case revolved around Bensayah Belkacem, an Algerian who had come into U.S. custody through extraordinary process in Bosnia, far from any battlefield, under suspicion of plotting to bomb the U.S. embassy, after American intelligence grew troubled by “chatter.” Belkacem and five alleged co-conspirators were charged and then released following court proceedings in Bosnia, in which the Federal Supreme Court noted a lack of evidence against them. The Bosnian cases have long been cited by legal experts as unjustifiable under the laws of armed conflict, so the conclusions drawn by the State Department memo could hardly have come as a surprise to anyone.

Savage portrays the controversy as pitting Koh against Jeh Johnson and lawyers at the Pentagon, with Justice Department lawyers predictably wanting to hold on to the positions they had staked out in the Bush years, while some of the new policy voices—like David Baron—push back. From what I have seen and heard from Johnson and other Pentagon lawyers, however, these differences are less about the law than about institutional posture. While the Pentagon is anxious to exercise a far-reaching detentions authority, even Pentagon lawyers supporting that initiative quietly acknowledge that their position has serious problems under international law.

I asked Human Rights First’s international law director Gabor Rona, a former lawyer with the Red Cross in Geneva, what he made of the article and the battle lines drawn in it. He responded:

The basic point is that the Obama Administration has moved from an incorrect interpretation of presidential powers under the Bush Administration to an incorrect interpretation of the laws of war, with the same result. The Bush Administration said it didn’t have to worry about international law and could arrange detention authority as it liked on the basis of executive authority. The Obama Administration stakes out a narrower claim—it accepts that the laws of war matter, but it then develops a concept of detainable persons which is essentially the same as Bush’s, arguing that it’s permitted under the laws of war. But the laws of war don’t authorize detention so broadly—they do not permit the detention of anyone, anywhere who has an association, even a substantial one, with an enemy, which is how the Obama team would have it. Battlefield captures in Afghanistan are one thing, but terrorist suspects arrested in an apartment in, say, Hamburg are another. Secondly, both the laws of war and human rights law require that a detained individual have an ability to challenge detention. But when the administration says that a court cannot order the release even of prisoners who have won their court challenge, it is emptying habeas corpus of its meaning, as well as thwarting the requirement of international law.

Rona quite properly puts the focus on the problems created by recognizing the applicability of international law while distorting key concepts of the law. In his recent speech to the American Society of International Law [PDF]–which I assume is what is meant by Savage’s reference to an “ABA speech”– Koh noted this issue and presented a reassuring while somewhat blasé recapitulation of the basic principles in play. (Update, March 30, 2010: Charlie Savage points out that Koh spoke at the ABA’s Standing Committee on Law and National Security on March 16. This was the speech he meant, not the ASIL speech.) It would be interesting to know what he argued in his memo, since he would have been under some pressure to put a sharper edge on things.

Another aspect of Savage’s article is a bit problematic to me. Relying on a discussion with Noah Feldman, he relates these conclusions to targeted killings:

But Mr. Feldman, the Harvard professor, said the detention debate also had “serious consequences” for the targeted killings policy because, “If we’re at war with you, then we can detain you — but we can also try to kill you.”

I have to assume that Feldman’s remarks got some rough editing on this point, because the law and the legal policy issues are much more complicated than that. “The power to target in the law of war is much narrower than the power to detain,” says Rona. Whether, when, and who a government can try to kill depends on a great many additional facts. Savage has tried to reduce a complex legal policy discussion to something that can be grasped at a single sitting by an intelligent reader. He’s done a generally admirable job, but some points have been simplified a bit past the point of serious comprehension.

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