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Assistant Attorney General Tony West Speaks at the ABA Standing Committee on Law and National Security Breakfast
Washington, D.C. ~ Friday, February 18, 2011

Let me express my thanks to Harvey Rishikof for his gracious invitation to speak today. Thanks also to Holly McMahon for bringing us together this morning.  

 

It’s a pleasure to be here with you to talk about the work we’re doing in the Civil Division to promote and protect the Nation’s national security interests. The work of this Standing Committee furthers the scholarship of national security law and encourages dialogue on these important issues. And your influence is far and wide—a member of my senior team, Mary Smith, works closely with the Standing Committee as its liaison to the ABA Board of Governors.  

 

As many of you know, the Civil Division represents the United States in courts throughout the Nation in a wide variety of matters. Essentially, we’re the federal government’s law firm, representing the President, the Cabinet, federal agencies and the Congress, and with over 1000 lawyers and more than 400 support staff, we are the Justice Department’s largest litigating component. Nearly every aspect of Federal Government operations and this Administration’s domestic, foreign and national security policy priorities finds its ways through our doors at one time or another.

 

And probably nothing we do in the Civil Division is as vital to the safety and security of the American people as is our work on national security matters. Indeed, there’s scarcely a week that goes by where I don’t deal with a significant, often controversial national security issue.

 

And the largest amount of my time spent in this area concerns our defense of the wartime detentions of individuals held at Guantanamo Bay.  

 

Currently, there are about 140 active habeas cases involving GTMO detainees who are challenging the legal basis for their detentions. Three years ago in Boumediene, the Supreme Court held that GTMO petitioners have a right to habeas and could challenge the legality of their detention in federal court.

 

Since then, the Civil Division has defended those cases on behalf of the United States.   That effort has required enormous resources, including dozens of Justice Department attorneys, hundreds of thousands of hours of DOJ time and constant coordination with several of our sister federal agencies throughout the Executive Branch.

 

This enormous effort stems from the fact that these are uniquely challenging cases, where the stakes are high because both national security and liberty interests are at issue, and there is tremendous pressure to get it right. I’ve spent many late nights with Civil Division lawyers in the Justice Command Center grappling with the difficult and frequently novel legal and evidentiary questions posed by these cases.

 

And added to that is a history of skepticism surrounding the legal legitimacy of detentions at GTMO. As President Obama has said, following the tragic events of 9/11, our government, “motivated by a sincere desire to protect the American people,” made a series of deci sions that took us “off course” and undermined the integrity of our efforts to defend the detention of individuals captured on the battlefield.

 

Now, detaining battlefield captures to prevent them from re-engaging in warfare is not in itself particularly controversial—indeed, that concept is as old as war itself. The challenge, however, is to litigate these GTMO habeas cases within a framework that offers an accepted legal basis for detention that is bounded by the rule of law, as well as procedural safeguards that are robust and fair.

 

But how do we do that? How has the Obama Administration and this Department of Justice litigated these important cases in a manner that is rooted in the Constitution and consistent with our Nation’s unique values? I think, over the last two years, we’ve done so in two significant ways:

 

First, this Administration has stated, for the first time, that the legal standard underlying the President’s authority to detain individuals at GTMO must be rooted in Congressional legislative action that draws guidance from the common laws of war.

 

Second, through our district and appellate court litigation, we have developed important procedural safeguards that ensure detainees have a meaningful opportunity to present their habeas cases to neutral federal judges, because the legitimacy of wartime detention is advanced— and national security is enhanced— when the government proves its case in a process that is perceived as fair.

 

So I’d like to talk about these two developments because together they have allowed us to meet our Number One priority of keeping the American people safe consistent with the rule of law: a legal standard rooted in Congressional authority and informed by the laws of war on the one hand; coupled with procedural safeguards that are just and reasonable on the other. Let’s look briefly at each.

 

First: the substantive legal basis for detention. On this point, there is some common ground: We are a nation at war and the courts in the Guantanamo cases have repeatedly agreed with the government that the President has the authority, consistent with U.S. law and longstanding law-of-war principles, to detain those who are part of enemy forces in this ongoing conflict. This is what the Supreme Court held in the Hamdi case.

 

But while the fact of the government’s wartime detention authority may be fairly settled, the breadth of that authority—that is, to whom it applies and under what circumstances— has been the subject of much debate.

 

To inform this debate, this Administration in March 2009 established a definition outlining who may be subject to the President’s detention authority. That definition indicated that the President may detain those individuals responsible for authorizing or participating in the 9/11 attacks, as well as anyone who harbors them. It also indicated that the President may detain persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces engaged in hostilities against the U.S. or its coalition partners.

 

This definition, known as the March 13th Definition, forms the substantive legal regime underlying all of our habeas cases. And, importantly, it is backed by two sources of legal authority: First, it is based on a duly-enacted Congressional statute – the Authorization for

Use of Military Force or “AUMF” – which authorizes the use of force against “organizations” and “persons” connected to the 9/11 attacks, as well as those that “harbored” or “assisted” them.

 

And second, the March 13th definition draws upon the international laws of war to inform our interpretation of the statutory detention authority conferred by Congress in the AUMF.

 

So for example, while the language of Congress’ AUMF speaks directly to al Qaida and

Taliban forces, longstanding law-of-war principles support our interpreting that authority to include other armed groups we have confronted in Afghanistan who are fighting with al Qaida and the Taliban.

 

And when Civil Division lawyers brief these cases in the federal courts, we take great care to articulate how the scope of our authority under Congress’ AUMF is supported by these legitimate and established principles. Notably, we have not relied on claims of independent constitutional authority under Article II as the substantive basis for the President’s detention authority.

 

We have presented the March 13th definition in case after case to the federal courts, and it has been repeatedly upheld. And by testing our authority in the independent federal courts, we’ve underscored the paramount importance of the rule of law, and lent substantial legitimacy to the government’s actions in detaining enemy forces.

 

Of course, applying the relatively straightforward principles of the March 13th definition can prove challenging when applied to an organization like al Qaida, which operates in violation of the laws of war; does not have formal enlistment procedures or uniforms; has a diffuse command structure; and operates in many cases clandestinely around the world.

 

Take, for example, the principle that those who are “part of” enemy forces may be detained: Courts are grappling with what it means to be “part of” al Qaida or the Taliban – every case poses a unique challenge, involving individuals with a different degree and type of connection to these terrorist organizations.

 

The D.C. Circuit has, in the course of applying the March 13th definition and developing the law, given us some guideposts that indicate some highly relevant facts to the inquiry – for example, to be “part of,” a person has to have a sufficient link to the organization— being a free-lancer is not enough; evidence that the person received or executed orders, or was integrated into the formal command structure of al Qaida is both relevant and sufficient but not necessary in every case; travel patterns consistent with al Qaida are highly relevant, as are associations with al Qaida members, which may show trust and acceptance by the group; and attendance at al Qaida training camps and safehouses that were used to facilitate training and fighting by recruits— that can be key evidence.

 

Now, in addition to the substantive legal standard I’ve just talked about, the courts have worked hard, with the help of the Civil Division and the detainee habeas bar, to develop procedural safeguards that are fair but which also acknowledge the unique nature of these cases.

 

So, two important take-aways here:

 

First: fairness. Courts must have the procedural tools that enable them to conduct meaningful reviews of the lawfulness of the government’s action. Additionally, detainees must have fulsome procedures that allow them to test the legality of their detention. Both of these are necessary for a process that has legitimacy and integrity, particularly when the government’s detention determinations are upheld.

 

And we in the Civil Division have embraced procedures to help ensure a meaningful review and fair process. For example, we’ve worked hard to create a process that allows habeas counsel to review classified evidence; we have taken on significant discovery obligations to provide access to classified material in the government’s files that could be helpful to the detainee in challenging the government’s case; detainees have the right to present their own evidence, including the right to testify in court by remote video from GTMO; and the burden of proof rests with the government— not the detainee—and we must demonstrate that detention is lawful by a preponderance of the evidence.

 

The second take-away is this: these cases are unique and require procedures that take that into account. More often than not, the evidence in these cases comes from a far-away battlefield, obtained under circumstances that don’t resemble anything you’d see on CSI; often it’s years old and based on hearsay; and much of the time, it comes from interrogations that were conducted for intelligence purposes in circumstances very different from the Mirandized, police interviews we’re all used to seeing in domestic criminal cases.

 

 Given these unique circumstances, the courts have taken a pragmatic and balanced approach to the evidence in these cases, such as viewing the evidence as whole, as opposed to evaluating each fragment in a piecemeal fashion; or accepting that hearsay is admissible, but recognizing that it is only valuable if the judge has a way to test its reliability.

 

And while the evidence we rely on in these cases is often unconventional, we’ve been unequivocal about one type of evidence we will not rely on: information that the government concludes was procured through the use of torture.

 

On this point, the President and the Attorney General are crystal clear: Torture is abhorrent to the rule of law and our fundamental values, and our lawyers who litigate these cases take allegations of mistreatment very seriously.   They have been diligent and painstaking in investigating such claims. Frequently, this has involved tracking down years later the actual interrogators involved in an alleged incident.

 

And to the extent there are plausible allegations of detainee abuse, we carefully examine the surrounding circumstances to reassure ourselves that any statements we seek to use from that detainee are sufficiently attenuated from any alleged mistreatment.

 

So, to sum up: We defend these cases because we believe the GTMO detentions have a solid legal basis to justify them; that basis is grounded in Congressional statute and informed by the laws of war. Further, we believe the procedural safeguards that we have developed ensure fairness for the detainees and a framework for meaningful review by the courts. And the evidence we present, while unconventional, is reliable and untainted by torture.

 

Of course, courts don’t always agree with our view of the facts and evidence. When we have lost and courts have issued orders directing us to release detainees and take diplomatic steps to effectuate their resettlement, we have complied or appealed, if there is a valid basis.

 

So I believe we have struck the right balance, litigating these cases in a manner that has kept the American people safe, makes the best reasoned arguments, and is consistent with the Constitution and our values.

 

We’ve been able to do that primarily through the excellent work of the career Civil Division lawyers, paralegals and staff responsible for litigating these habeas cases. These folks exemplify something I learned over 15 years ago, when I was a young DOJ lawyer. Back then, I had the good fortune to do much of my work for then-Attorney General Janet Reno.

 

Just before I left Main Justice to return to my home state of California to serve as an Assistant

U.S. Attorney, Attorney General Reno asked to see me, one-on-one.

 

And during that meeting, she showed me the inscription on the wall just outside her private office, which reads, and I’m paraphrasing: “The Government wins its case when justice is done.”

And she told me then that my job as a prosecutor wasn’t to win as many cases as I could, but to do justice in every case I handled. I’ve seen that same spirit in the Civil Division team that deals with these habeas cases day in, day out.

 

And while, in doing our best, we may not always get it right, I can promise you we’ll always try to do what’s right. And that, I believe, makes all the difference.

 

I’m thankful for that opportunity, and I appreciate being with you this morning.

Via C-SPAN: Watch Assistant Attorney General West’s Speech to the American Bar Association

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