A few weeks back, I posted about my new Fordham Law Review essay, “Detention After the AUMF,” which explains how the President could use existing authority–to wit, section 412 of the USA PATRIOT Act–as a realpolitik solution to the Guantánamo impasse. In the paper, I argue that, insofar as the fate of the “un-releasable” detainees is the tail wagging the debates over both closing Guantánamo and repealing the AUMF, the acceptance of a carefully circumscribed administrative detention regime in exchange for the transfer or release of the remaining detainees and the potential repeal of the 2001 Authorization for the Use of Military Force might be a politically feasible “grand bargain,” and thus a least-worst solution to what has to be one of the most disheartening policy failures of the incumbent Administration.

Earlier this week, my good friend Deborah Pearlstein posted a fairly scathing critique of my proposal over at Opinio Juris. Deborah’s post is worth reading in its entirety. But, in a nutshell, Deborah levies two central objections against my thesis: First, she argues, I’m perverting the spirit and purpose of section 412 by adapting it to justify potential long-term detention of those Guantánamo who are too dangerous to release, but for whom there are no alternative means of incapacitation. As Deborah argues, I’d be encouraging the government to use section 412 only as a pretext to effect a very different administrative detention regime than that which Congress contemplated back in 2001. Second, Deborah writes, it’s not at all clear that my envisioned compromise would materialize–and that the substantial price of such a proposal would therefore be worth it.

Below the fold, I offer more detailed responses to each of these arguments. But so as not to bury the lede, let me stress one very important defect in Deborah’s critique: She has no alternative proposal other than “letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities.” Even if it does, that presumes that the hostilities are ending, and that courts will so rule even while the AUMF is still on the books. (Indeed, such claims would be far stronger if and when the AUMF is repealed.) To similar effect, some who have critiqued my proposal offline have held fast to their view that we should instead push for all of the detainees to be charged with a crime, transferred, or released. Just to be clear, I don’t disagree that I’d prefer either of these scenarios to my own proposal. But I have no faith that such a result is remotely feasible in the current political climate–or anytime soon, for that matter. And so the real question for all of us is whether we’d prefer the status quo. I certainly would not.

I.  Section 412 and Detainees No One Wants

Deborah’s central critique of my essay is her claim that I’m misreading (or, at the very least, incentivizing the government to misread) section 412. Deborah is unquestionably correct that “Section 412 was designed to authorize the detention of people currently in the United States who the executive wants to deport from the country.” And, thanks to a series of relatively recent statutory reforms and a largely overlooked 2005 Supreme Court decision, the President can remove non-citizens to any country that will take them if there’s no more obvious candidate (so long as removal to that country wouldn’t otherwise be unlawful, e.g., because the detainee credibly fears torture there). Thus, Deborah assumes that there wouldn’t be that many cases actually falling within the auspices of the Act’s long-term detention authority–where “removal is unlikely in the reasonably foreseeable future.” Even for the Guantánamo detainees, Deborah presumes, some country will agree to take them, and so it would require an outright perversion of section 412 to allow the government to continue to detainee such individuals if they’re otherwise removable.

I don’t disagree with Deborah that such a reading of section 412 would pervert the statute (although it’s worth reminding readers that the Supreme Court has not balked at far more naked perversions of other detention authorities where terrorism suspects have been concerned). I do disagree with Deborah’s underlying assumption, though–that countries will be lining up to receive the “un-releasable” detainees (or, at least, that countries that won’t mistreat the detainees will be lining up to welcome them in). Recall how difficult it was for successive administrations to find countries to take the Uighurs–and they were about as far removed from the “un-releasable” detainees as we could imagine. Perhaps Deborah and I disagree about how many of the “un-releasable” detainees would fall into this category. My suspicion, though, is that it will be an overwhelming majority of them–in whose cases section 412 would be invoked for the precise purpose for which it was designed: to allow the government to detain, rather than force it to release, especially dangerous non-citizens who are subject to deportation, but who no country can or will receive (and whose removal is thus “unlikely in the reasonably foreseeable future”). This is the exact question Justice Breyer reserved in the Zadvydas case, a reservation that section 412 was clearly meant to exploit. That doesn’t mean such detention authority doesn’t raise serious due process concerns; as my essay explains, it does. But Deborah’s point that the statute wouldn’t even be fairly read to authorize such detention can’t be squared with the (substantial) percentage of the “un-releasable” detainees that no country would agree to take (or wouldn’t mistreat, if they did).

II.  Is the “Grand Bargain” Actually Possible?

Deborah’s second objection is, in my view, far more salient–that I have no reason to believe such a proposal will actually produce the compromise I envision–where Congress agrees to repeal, or at least scale back, the AUMF, and removes the remaining Guantánamo transfer restrictions (which, in theory, would clear the way for the transfer or release of the other non-commission detainees). Of course, she’s correct. An easy enough response would be to simply state, as I do in the paper, that I don’t think the political branches should pursue such a route without these two additional legislative developments. But it should also follow that my proposal has no salience so long as the AUMF remains on the books (hence the paper’s title). There would be no reason for this Administration or its successors to voluntarily subject itself to the more procedurally and substantively rigorous judicial oversight of these cases that a switch from military to administrative detention would necessarily portend. Simply put, mine is a proposal designed solely to make it easier for Congress to repeal the AUMF, since it would directly respond to those who would object on the ground that such a step would deprive the government of continuing detention authority. Deborah’s certainly right that there are other forces at play in the AUMF debate; my point is simply to suggest how we might remove Guantánamo from that equation.

As for the price, Deborah also worries about setting a dangerous long-term precedent–implicitly invoking Justice Jackson’s “loaded gun” metaphor. Specifically, she fears that my proposal, although designed as a one-off solution for “legacy” cases, would become a too-convenient tool for future Presidents, and would thus hard-wire into our legal system an existing, long-term administrative detention regime. I, too, share this concern. I just don’t think it’s present here, for reasons I explain at some length in the essay. To make a long story short, though, the key point is how much easier it is to try newly captured terrorism suspects in our civilian criminal courts–an alternative means of incapacitation that should prove fatal to the government’s ability to overcome due process objections to reliance upon section 412. That is to say, it’s only on the unique facts of the Guantánamo legacy cases that my proposal could possibly satisfy due process concerns. And, of course, Congress could always clarify that section 412 can’t be used for any future cases if it’s a sufficiently serious concern.

III.  The Impending 1039 Report

If you’ve gotten this far, you may think that Deborah and I are in the midst of an entirely academic debate, and that the status quo is what we’re going to be stuck with for the forseeable future. Keep in mind, though, that under section 1039 of the FY2014 National Defense Authorization Act (NDAA), the Obama Administration is due to file a pretty important report tomorrow that is supposed to provide:

(1) An assessment of the extent to which an individual detained at Guantanamo, if transferred to the United States, could become eligible, by reason of such transfer, for–

(A) relief from removal from the United States, including pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(B) any required release from immigration detention, including pursuant to the decision of the Supreme Court in Zadvydas v. Davis;

(C) asylum or withholding of removal; or

(D) any additional constitutional right.

(2) For any right referred to in paragraph (1) for which the Attorney General determine such an individual could become eligible if so transferred, a description of the reasoning behind such determination and an explanation of the nature of the right.

(3) An analysis of the extent to which legislation or other steps could address any legal rights described in paragraph (1).

In other words, we’re going to hear shortly from the Obama Administration on how it feels about these very issues (including, I presume, section 412)–and its response will hopefully provide a newfound impetus for some kind of resolution to the Guantánamo impasse.