The 9/11 Commission’s Tenth Anniversary Report Card was issued this week (PDF); the brief document reported on the lack of progress the U.S. has made since the Commission’s original report in 2004. The update helpfully informed Americans that we should continue to fear the terrorists, that we should implement even more invasive TSA procedures at the airport, and that we need better walkie-talkies. These have been topics of much debate in the media. My interest in the document, however, was content related to detainee rights: would the Commission hold the administration accountable for failing to implement reasonable and lasting policy on “War on Terror” detainees?
While crediting the Obama administration with better aligning Guantanamo policy to Geneva Convention norms, the Commission largely gave a failing grade to overall U.S. policy. And they are right to do so. Taking a look back at the Commission’s original recommendation, it is clear that outside of some minimal detainee rights, all of which flowed from Supreme Court decisions, the U.S. government has not acted on this recommendation.
The original 9/11 Report called for a collaborative approach with other nations to create a uniform structure for detainee rights (see Recommendation #11). Besides putting an end to torture, the Commission also advised the administration to codify detainee policy in order to create a consistent, humane, and internationally viable set of rules that respect the principles of Geneva Convention Article 3 (PDF). Among the Article 3 provisions is a prohibition against “passing of sentences . . . without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Whatever those least-common-denominator judicial guarantees are, prisoners certainly require access to a court to enjoy them. Thus, an obvious staring place for any detainee policy must be habeas corpus entitlement, the right to challenge one’s detention in court.
Habeas corpus: The most basic right
The issue of detainee habeas corpus rights was at the center of numerous Supreme Court cases between 2002 and 2008, culminating in the landmark Boumediene v. Bush decision extending habeas corpus rights to Guantanamo detainees (for more, see my research paper on habeas corpus and post-9/11 cases). Unfortunately, no lasting model for detainee treatment was ever enacted into law, and the Boumediene decision has so far been restricted to Guantanamo, leaving untouched the numerous other offshore U.S. military prisons, like the prison at Bagram Airbase in Afghanistan; these remain habeas-free zones where individuals are held indefinitely without trial.
No specific recommendations
The Commission never outlined specific aspects of the policy they advocated creating. According to Lance Cole, whom I interviewed about this topic last year, this was intentional: the Commission “didn’t address a lot of the difficult issues” related to enemy combatants. “At the time,” Cole said, “indefinite detention was assumed to be a temporary issue” and the Commission had no desire to second-guess the president’s prosecution of a then-fresh war. Moreover, it would seem, the kind of “common coalition approach” suggested by the Commission (p. 380), is larger than any one individual prison. So although the Commission doesn’t explicitly name Bagram as a problem, it seems clear that any policy in the spirit of Recommendation #11 must, at a bare minimum, articulate a basis for habeas corpus for any detainee of the United States, anywhere in the world. And yet, ten years later, indefinite detention remains a very real issue, with no coherent policy solution.
F for Effort
Oddly enough, the Commission credits the Obama administration with bringing the U.S. into “compliance with the Geneva Conventions,” while simultaneously pointing to the continued failure of U.S. policy regarding indefinite detention (someone with legal expertise can explain to me how these two assessments aren’t contradictory). The bottom line, though, is the administration has failed to make any real progress toward defining detainee rights. They haven’t simply failed to live up to my expectations of what those rights should be; they have failed at the most basic task put to them by the Commission (and required of them by common sense) by neglecting to create any policy at all.