BY ALEXANDRA LEWIS
On Friday, November 3, the Harvard International Law Journal played host to John B. Bellinger, III, Legal Adviser to the Secretary of State, who gave a focused presentation on the rationale for the Bush administration’s policy with respect to detainees, moderated by Professor Heymann. An HLS (’86) alumnus, Bellinger seemed genuinely pleased to be addressing an interested and concerned group of law students.
Bellinger attempted to concentrate on the legal issues that underlie the Bush administration’s policy decisions, rather than engage the “passions” on both sides of the issue. Despite this limitation, he willingly addressed the audience’s challenges to the administration’s policies and acknowledged, at Professor Heymann’s indication, the silent protest of one student, who sat in the front row shrouded in a black sack. He proceeded to outline a set of questions the State Department has addressed, and then encouraged the audience to consider whether the administration has it right or wrong on these issues.
First he addressed the legal authority that formed the basis of the decision to hold and detain individuals as part of the war on terror. Bellinger explained that most of the current detainees were captured in Afghanistan and Pakistan as part of a defensive response to al Qaeda’s attacks in the United States – a response sanctioned by the law of war. Classifying this action as armed conflict implies, according to Bellinger, that the United States had the right to use force and detain opposition forces. Detention, he argued, did not carry with it a corresponding obligation to charge detainees with a crime, as they were effectively prisoners of war.
Bellinger asked whether the United States, after detaining people on the battlefield, had an obligation to release them at some point. He responded by noting that under international law, the end of armed conflict triggers an obligation to release detainees, but then contended that the state of armed conflict continues today. Thus, no obligation to release detainees has yet arisen, according to the logic of the administration.
Next, Bellinger addressed one of the central questions in the detainee debate: can the United States continue to hold detainees indefinitely without trial? Bellinger avoided specifying a time period above which continued detention would be unreasonable, but noted that both extremes – immediate release and indefinite detention were equally untenable. The administration has chosen an intermediate solution: opting for periodical reviews of the detainees’ cases to evaluate whether as individuals they continue to pose a threat.
Attempting to persuade the audience that only those classified as criminals can expect a trial, Bellinger discussed why detainees are not tried in criminal courts or in martial courts. He highlighted a number of practical considerations that make a traditional trial for detainees difficult if not impossible, including problems of proof, difficulties associated with preserving the chain of custody of evidence, use of classified information, and the basic problem that federal criminal laws do not criminalize battlefield activity warranting detention.
Finally, Bellinger turned to the issue of the legal basis for the military commission and then addressed the need for the Military Commission Act. He conceded that initially the commissions were set up illegally by executive fiat, rather than by a vote of the legislature. As a result, the Military Commission Act has, according to Bellinger, addressed the concerns of the Supreme Court as articulated in its decision last term in Hamdan v. Rumsfeld, by ensuring these judicial bodies were properly established. Bellinger then defended the use of military commissions as fair, impartial judicial bodies. He further noted that the administration has made additional concessions deferring to concerns over the rights of accused, including permitting the accused to be present at all times to hear the evidence and authorizing a right of appeal to the Article III courts.
After addressing what Bellinger sees as the most frequent criticisms of administration policy, he took questions form the audience, challenging students to answer the difficult question, “How would you do it differently?” One student queried whether this is a war with al Qaeda or a war on terror. Bellinger responded, “No, the global war on terror is not a legal term; it is essentially a political term.” He recognized that the term is useful in that we need to be collectively fighting terrorism throughout the world, but acknowledged that a legal state of conflict with all terrorists would be difficult. He claimed that the detainees at Gitmo specifically are either Taliban or al Qaeda-related.
Another student found Bellinger’s “passion vs. law” distinction untenable, and wondered whether policy in this domain is so easily separated from politics. Bellinger insisted the Military Commission Act was not passed because of politics but in response to Hamdan and pressures to try detainees – although “pressure” is strikingly political. The student followed up, pushing back on stripping of the right of habeas corpus, to which Bellinger answered that people captured in war outside this country never had a right, making the term “stripping” misleading.
Professor Heymann questioned the propriety of determining enemy combatant status based on information received from warlords in Afghanistan who have received a compensation for their troubles, and attacked this practice as “very sloppy” in comparison with determining Prisoner of War status. Bellinger responded with assurances offered by the levels of review, in particular the Combatant Status Review Tribunals, as protection against mistake and reiterated his point about the unavailability of viable alternatives. He then noted the classic distinction between how the law should work and how it does work in reality.
Another student wondered who decides which detainees are tried and on what basis. Bellinger said that he has heard estimates that 40-80 detainees may actually be brought before a military commission. As for the others? He asked what we should do – “let them out on the street?”
Consequently, the reality for most is that the Military Commission Act means very little because the administration will actually bring charges against very few. The remaining hundreds will be left in limbo until the administration finds an answer to this student’s query. With so few being tried and little departure from courts-martial procedure, it is questionable how much the MCA has changed the picture for detainees.
Bellinger addressed questions openly and his point was clear: no one has easy answers to these questions. Unfortunately, the administration must respond, and as this discussion highlighted, it is almost impossible to divorce passion from legality in devising solutions.