A first draft, disorganized list of questions for counterterrorism policy to answer in a new administration
I am working at this very moment on a short commentary for a law review tentatively titled (the law review does not know this yet), New FAQs for the War on Terror: Questions That Counterterrorism Policy Must Answer in a New Administration.
I am gradually developing a list of questions that constitute questions that define the policy divide on various matters of law. In no order at all - really completely disorganized - and without trying to make the language pretty or pithy, here is the beginning of the list:
Is administration detention in principle ever permissible? Or must it always come down to, as the UN special rapporteur asserted in a debate a couple of weeks ago with me at ASIL, try them in a reasonable time or let them go, and that principle transcends whatever specific, technical legal structure you employ?
Can ordinary criminal trials, without special recourse, adequately serve counterterrorism needs?Can you use some structure for trials that is outside the existing criminal law framework?
Note that legal conservatives Rivkin and Casey oppose the move to a national security court precisely because they believe that only commander in chief authority and the law of war provide the constitutional basis not to have ordinary criminal trials. It is the conservative analogue to the position of the rights groups: they likewise do not think that you can constitutionally have special procedures even if it is "civilian."
Is waterboarding torture, or otherwise always impermissible?
In interrogation practices, does it matter what you know about the person - their degree of knowledge and culpability - - and the risk to others reasonably assessed - situational ethics, so to speak - in determining what you can permissibly do to them short of torture, however specifically defined? Are you allowed to do to KSM things, while still short of torture, that you are not allowed to do to someone about whom you know nothing?
Will the citizen (and resident alien, really) v noncitizen distinction continue to apply; and will the territorial v nonterritorial distinction continue to apply in counterterroism legal regimes?
The current administration position is that citizens cannot be subjected to illegal enemy combatant treatment. Increasingly, rational terrorist groups will seek to recruit Americans or American passport holders - the situation will come to resemble that of Western Europe, where the terrorists are "yours" - and a special legal regime premised on noncitizenship or nonterritoriality will not do what you intended when designed around Guantanamo Afghan prisoners.
Is it okay to change the legal criminal rules for CIA personnel midstream?
Ex post facto problems? Simple fairness? Consider how much of the wrangling in the Judiciary Committee has really had this as the predicate unstated.
What must and should be got from Congress, and what is the obligation of the judiciary to defer to the united political branches on counterterrorism and national security policy?
Will the judiciary defer? Heck if I know.
What is the application of international human rights law to all of this, apart from domestic US law?
How should it interact with the laws of war in the existing situation, and what about its application to the US domestically or abroad?
How should future detentions be governed?
Under what structure? Nearly all the existing regimes have been built around the "legacy" Afghan prisoners. Over time, however, new adminsitrations will almost certainly detain people who might or might not be citiziens, might or mght not be in the United States.
Most importantly at this moment - not a hypothetical category - the US is currently detaining thousands of people in Iraq, including a large number of foreign jihadis. A possibly unavoidable issue for a later administration is what happens to those jihadis whom the United States has concluded it cannot try for any particular crime but whom it cannot let go free - to go make jihad in Iraq again, or Afhstanistan or Pakistan or thailand or Indonesia or Malaysia etc. What should it do?
When will any of this get taken up in a serious way, if ever?
(And, most important, why can't I use block quotes or bullets without screwing up the letter justification on Blogger?)