Seven Questions: The Detainee Debate

FOREIGN POLICY: How well do you think this bill balances security and civil liberties?

Patrick Philbin: It does a good job of [that]. The administration was very successful in getting the standards that [will] enable it to be as aggressive as it needs to be to protect the American people during the war on terrorism. [But there was also an effort] not to go too far or overstep bounds. We needed some clarity on areas in the law that were vague, such as outrages on personal dignity under Common Article III [of the Geneva Conventions] and cruel and degrading treatment.

FP: Do you think congressional involvement will make it unlikely that the Supreme Court will strike down any part of the bill as unconstitutional?

PP: I think thats right. The Hamdan decision made clear that a lot of the Supreme Courts criticisms of military commission procedures were things that the court thought would be cured by congressional blessing.

FP: How real was the risk of CIA interrogators being prosecuted or sued before this bill?

PP: If you look at the history of intelligence operations since World War II, there has been a general pattern. Intelligence operations proceed and then theres some kind of backlash when things get out of hand. There are exposs and congressional hearings and sometimes prosecutions of members of the intelligence community. Then, new statutes are passed, new rules are put into place, and the cycle starts all over again.

FP: Looking at the bill, what concessions did Sens. John McCain, John Warner, and Lindsay Graham achieve from the administration?

PP: One significant point is that, in the provisions for protecting classified information, there is no mechanism, on the face of the bill, that allows classified information to be introduced into a military commission proceeding, used as evidence, and not disclosed to the defendant.

FP: Another concession is that the administration will have to list non-grave breaches of Common Article III in the Federal Register [which is the official daily publication for federal agencies and executive orders]. If procedures like forced standing, extreme temperatures, and water boarding arent mentioned, does it mean they are legal?

PP: I think it will be very unlikely for the president to issue something in an executive order that is going to specifically describe potential interrogation practices or to announce publicly what are or are not breaches of Common Article III. The government has quite rightly been very careful not to discuss specific interrogation practices until now, because it would alert the enemy as to what to expect and to train for counterinterrogation. So I doubt we will see that kind of specificity in anything that is put in the Federal Register.

FP: Can U.S. citizens be designated as enemy combatants, and is there a possibility under the bill that an alien in the United States could be detained without the writ of habeas corpus and held without notification of his government or family?

PP: U.S. citizens certainly can be designated enemy combatants and subject to detention under the laws of war. But they are not subject to trial by military commissions created by or authorized by this statute. And, yes, its possible that [an alien] can be detained without the writ of habeas corpus. I am not sure that there is any source of law that requires notification of that persons government.

For those detained at Guantnamo Bay, a combatant status review system has been set up to determine whether or not they have been properly held by the military as an enemy combatant. And under the Detainee Treatment Act of 2005, there is an appeal available for review of that decision to the United States Court of Appeals for the D.C. Circuit. So there is the involvement of the federal courts in reviewing detention. And there is also a separate administrative process, the Administrative Review Board, which will review, at least every year, the detention of that person to determine whether the detention is necessary to protect the national security interests of the United States.

Patrick Philbin, now in private practice in Washington, D.C., served as deputy assistant and associate deputy attorney general from 2001 to 2005.