Nachbar on a New Shift in U.S. Detention Policy


Professor Thomas Nachbar's new paper is titled "Executive Order 13567: Executive Branch Policy Meets International Law in the Evolution of the Domestic Law of Detention."

December 29, 2011

Faculty Q&A

An executive order issued by President Barack Obama in March marked a significant shift in U.S. policy dealing with detainees, according to a forthcoming paper by University of Virginia School of Law professor Thomas B. Nachbar.

Nachbar, a judge advocate in the U.S. Army Reserve and a civilian senior adviser for the U.S. Department of Defense, Office of Rule of Law and Detainee Policy, suggests in the article that the Obama administration is embracing international law to a far greater extent than the previous administration.

Nachbar, who is also an expert on communications regulation and antitrust issues, recently discussed his paper with the Law School. Although he wrote the paper while on duty as a reservist, Nachbar said the article and this interview represent his personal views and not those of the Department of Defense or U.S. Army.

What exactly did President Obama's Executive Order 13567 set out to do?

It seeks to regularize the process for determining whether to continue holding detainees at Guantanamo Bay. And context is really important. There was a previous interagency review that was conducted pursuant to an executive order that the president issued on his second day in office. But that was a one-off. It said, 'We're going to do a review.' And they did a review of everyone at Guantanamo. And the question becomes, well, what happens after that?

This executive order sets up a regularized periodic review for the detainees at Guantanamo Bay. The Department of Defense hasn't issued detailed guidelines on this yet. But, in practice, it looks like the review will look a lot like that the previous review, but it will happen periodically.

You suggest that the executive order and its accompanying "fact sheet" represent a sharp contrast with previous U.S. positions on the law of armed conflict. Can you elaborate?

One of the really interesting points of conversation about the Obama administration's approach to detention has been about how much it deviates from the Bush administration's approach to detention.

A lot of folks have pointed out that President Obama made some pretty bold claims about changing the country's approach to detention when he got into office, but for a variety of reasons it's been impossible for him to do that. Congress, for instance, has prohibited him from closing Guantanamo Bay and moving detainees elsewhere.

A lot of people have also talked about, at least in terms of outcomes, how the Obama administration's approach hasn't varied much from the Bush administration's detention policies. And there's a debate about how different they are as a matter of substance. But I think that what's frequently lost by those focusing on outcomes — on how many people are actually released — they're missing an underlying shift in the Obama administration's detention policy and international law.

The Obama administration seems to be interested in embracing international law as part of its detention policy in a way that the Bush administration was not. Even though it hasn't resulted in a wave of releases or the disavowal of detention authority, that shift in philosophy is quite a bit more important than a lot of people are giving it credit for.

So why do you think this shift toward embracing international law as part of U.S. detention policy is important?

At the beginning of detention policy, back in 2001-02, the Bush administration basically determined that the detention regime really didn't fit any of the established international legal regimes for detention. Eventually, the Supreme Court pulled U.S. detention policy more towards international law, of one kind or another — whether the law of armed conflict or international human rights law, but mostly the law of armed conflict. And the Obama administration appears to be much more interested in engaging those law-of-armed-conflict treaties that the Bush administration rebuffed.

The fact sheet, along with some unattributed but I think credible interview sources, signals that the Obama administration plans to comply with Article 75 of Additional Protocol I [to the Geneva Conventions, which addresses the treatment of prisoners of war and related human rights issues]. That would mostly affect military commissions, as opposed to detention determinations. But the fact sheet also announced that the Obama administration seeks to have Congress ratify Additional Protocol II. Both signs are an embrace of international legal sources, while the Bush administration wasn't as interested in embracing international law.

Are there practical implications of the order?

The executive order applies only to a small number of detainees, all of whom were getting some kind of process before. So it looks like a continuation of the last set of reviews. Because the DOD hasn't issued implementing regulations for this [order], we don't know exactly what's going to happen as a practical matter, but it signals something of a shift in the administration's approach — so it may have implications for places like Afghanistan, where we're holding considerably more detainees, but to whom the [executive order] does not technically apply.

What's your opinion on the executive order? Do you think this shift you've identified is a positive one?

It's an interesting shift. A lot of people are happy to see the administration take a more active approach to embracing international law. Some people are unhappy that it's not a more aggressive embrace of international law.

I think there's some question about whether this is the right way to do it. The real issue is that the U.S. position on international law is not simply a product of the executive. Courts play a huge role, too, but, especially in the detention context, they do so in a rather odd way: through interpreting provisions of U.S. domestic law in light of international law. Usually, international law and domestic law are more distinct, but in the case of detention, they are essentially being merged in many of these habeas corpus cases being heard in federal courts. If the executive signals it's time to embrace new international legal sources, the question is how that is going to be picked up by courts. Because it seems like there's not much of a wall between international legal sources and domestic legal sources, a shift in how the executive applies international law provides an opportunity for the courts to import some of these international norms into domestic legal sources in a somewhat novel way. We saw the Supreme Court do that in the Hamdi case.

I think it's great to see the administration taking a more active approach toward international law, but I don't think we've seen all the implications of that decision.

How did you become interested in the topic?

This is actually a piece of work that stems from my service as an Army reservist in the Judge Advocate General's Corps. I actually wrote the first draft of this paper while I was on my annual training at the Office of the Judge Advocate General in Washington, and it also relates to [my role] as a civilian senior adviser to the Department of Defense policy office that's dedicated to rule of law and detainee policy.

How does this topic fit into your overall scholarship?

It relates very closely to other work that I've done with regard to developing the rule of law in other countries where we're involved in detentions, as demonstrated to some extent by the merging last year of the detention policy office in DOD with the rule of law office in DOD. In both Iraq and Afghanistan, too, we've seen detention operations morph over time into rule of law development organizations. I am developing a book chapter on that topic for an upcoming American Bar Association book on rule of law development.

What will you be working on next?

I'm working on several related papers that have to do with the relationship between detention policy and rule of law capacity-building in other environments. I also have a paper on some of the theoretical aspects of counterinsurgency doctrine, which relate to both detention policy and rule of law capacity-building.

But what I'm working on over the winter break is a paper on the role of the per se rule in antitrust law. I'm also getting ready to attend the Army Judge Advocate Officer Advanced Course, which I'll be doing for the two weeks immediately before the start of the spring semester. It makes for some pretty quick shifts from studying military law to teaching my Antitrust and Communications Law classes, but I really enjoy both my military-related work and teaching and studying trade regulation. They're very different types of law, but they present their own challenges and I find keeping active in both areas keeps me from getting overly comfortable in either.

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