Understanding What it Means to be “Approved for Transfer”: A Response to Lawrence Rosenthal

Lawrence Rosenthal argues below that the Executive lacks any AUMF authority to continue to detain GTMO detainees who have either been approved for transfer by the GTMO Review Task Force, or cleared for transfer by a Presidential Review Board (PRB).  His post is an implicit rebuke of the lawyers for such detainees, who have not pressed any such argument before the habeas courts.  But the GTMO attorneys know better than that.   They know that Professor Rosenthal is wrong on the facts and the law.

On the law, Professor Rosenthal argues that under the Court’s decision in Hamdi, the AUMF authorizes detention only if it is “conditioned on the Executive’s judgment that the detainee represents a threat if released.”  Not so.  Hamdi holds that members of enemy forces can be held until the end of hostilities, just as such forces have been held in countless wars throughout history–rarely if ever based on any individualized threat assessment.  To be sure, the rationale for such a rule–the “purpose of detention,” in Justice O’Connor’s words–is “to prevent captured individuals from returning to the field of battle and taking up arms once again.”  The laws of war assume, however, that members of enemy forces may do just that, since they presumably are subject to, and will comply with, orders issued by the armed group to which they belong.  Accordingly, in the wake of Hamdi, the habeas courts consistently have held that being part of al Qaeda forces, as such, is sufficient for AUMF detention, without requiring the executive to come forward with proof of a specific threat posed by the particular member of enemy forces in question.

This is rather an academic legal point, of course, because the Administration would have no interest in continuing to detain anyone who they determined does not, in fact, pose any threat.  That was the case, for example, with respect to the Uighur detainees (who were not part of enemy forces, and whose detention the AUMF did not authorize, as the courts and the executive agreed).

But let’s assume for the sake of argument that Professor Rosenthal were correct on what appears to be his narrower contention–namely, that once the Executive affirmatively determines that a detainee no longer poses any threat of reengaging in the conflict, AUMF detention authority would lapse.  Rosenthal appears to assume that that describes the cases of dozens of GTMO detainees who the Task Force has approved for transfer, as as well as Mahmud Abd Al Aziz Al Mujahid, who two weeks ago became the first detainee cleared for transfer by a PRB.

Professor Rosenthal misunderstands what the Task Force and the PRB have determined, however.

Let’s start with the GTMO Task Force.  As explained in its Report, the Task Force “primarily evaluated the degree of threat posed by the detainee to U.S. national security, whether the threat could be mitigated through appropriate security measures, and the potential destination countries where it appeared possible to safely transfer the detainee.”  Ultimately, the criterion it applied was that “a detainee should be deemed eligible for transfer if any threat he poses could be sufficiently mitigated through feasible and appropriate security measures.”

The Task Force was at pains to “emphasize,” however, “that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism. Rather, the decision reflects the best predictive judgment of senior government officials, based on the available information, that any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country.”  The Task Force elaborated:

Indeed, all transfer decisions were made subject to the implementation of appropriate security measures in the receiving country, and extensive discussions are conducted with the receiving country about such security measures before any transfer is implemented.  Some detainees were approved for transfer only to specific countries or under specific conditions, and a few were approved for transfer only to countries with pending prosecutions against the detainee (or an interest in pursuing a future prosecution).  Each decision was made on a case-by-case basis, taking into account all of the information about the detainee and the receiving country’s ability to mitigate any threat posed by the detainee. For certain detainees, the review participants considered the availability of rehabilitation programs and mental health treatment in the receiving country.  The review participants also were kept informed of intelligence assessments concerning recidivism trends among former detainees.

It is also important to emphasize that a decision to approve a detainee for transfer does not equate to a judgment that the government lacked legal authority to hold the detainee.  To be sure, in some cases the review participants had concerns about the strength of the evidence against a detainee and the government’s ability to defend his detention in court, and considered those factors, among others, in deciding whether to approve the detainee for transfer.  For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a lawful basis for his detention.  The review participants nonetheless considered these detainees appropriate candidates for transfer from a threat perspective, in light of their limited skills, minor organizational roles, or other factors.

In other words, the Task Force cleared dozens of GTMO detainees for transfer even though their detention was deemed to be lawful and even though they would pose at least some threat if released.  (And now that the statutory limitations have been eased, the Administration is once again making progress in transferring these detainees, even if they are legally detainable.)  By contrast, the Task Force did find that the Uighurs posed no threat at all (see footnote 5); and because those detainees were not part of enemy forces, the Administration did not claim AUMF detention authority as to them as it sought to transfer them to nations where they agreed to be transferred, an effort that ultimately resulted in the transfer of all the Uighurs.

Now, as to al Muhajid, and any other GTMO detainees who may subsequently be cleared for transfer by a PRB:  The President’s PRB executive order expressly provided that it was “intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases.  It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law.”  More to Professor Rosenthal’s point, the Executive Order provides that the PRBs should determine, not whether a detainee is lawfully detained, or whether his release would pose any threat at all, but instead whether “[c]ontinued law of war detention is warranted”–and the order specifies that such lawful detention should be deemed “warranted” only “if it is necessary to protect against a significant threat to the security of the United States.”

Not surprisingly, then, the PRB that evaluated al Muhajid did not conclude that he posed no threat, let alone that his detention is no longer AUMF-authorized.  Instead, it concluded “that continued law of war detention is no longer necessary to protect against a continuing significant threat to the United States and that Mujahid is therefore eligible for transfer subject to appropriate security and humane treatment conditions.”

* * * *

Professor Rosenthal’s entire post appears to be predicated on his assumption that the Executive branch has determined that a subset of the GTMO population would pose no threat at all if they were to be released.  As far as I know, however, that’s a null set.

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).