The memo being circulated by Republicans on the Hill:
The Columbia Law School this week announced that Professor Sarah Cleveland has been appointed Counselor in International Law with the State Department Legal Adviser's Office, in which "she will advise the State Department and the executive branch on international law issues, and will help develop the State Department's position in U.S. litigation involving international and foreign relations law issues." Ms. Cleveland's testimony before Congress as a law professor raises questions about her ability to support in a court filing the clearly established U.S. position that there is a certain set of al Qaeda detainees who can be held until the end of conflict without some judicial disposition of their case.
In the previous Administration, Guantanamo detainees were generally seen as 1) those eligible for release or transfer, 2) those expected to face trial by military commission or some other judicial disposition, and 3) those to be held until the end of the conflict. The Attorney General this year confirmed that he sees the Guantanamo detainees in exactly the same way, as he testified before the Senate Appropriations Committee Subcommittee on Commerce, Justice, and Science on May 7, 2009 that "[1] some are going to be released, [2] some are going to be tried, [and 3] some will be detained on a fairly extended basis."
Professor Cleveland denied the existence of this last category, asserting in Congressional testimony that the premise that there is a "category of detainees who are ‘too dangerous to be released, but who cannot be tried'" must always be challenged, or as President Obama labeled this category in his May speech to the National Archives, "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people." She called this her testimony against the President's proposal "that the government should be able to lock people up without proving that they had done something wrong."
In this testimony, Professor Cleveland challenged other well-established positions on the law of war of this Administration as well. For example, she questioned the "power to detain persons seized outside a traditional theater of combat," questioning "if [such] non-battlefield detentions could be contemplated under the international law of armed conflict," and further asserting that even if they did exist "they likely would be unconstitutional." This proposition is made all the more problematic under the very constrained view of the battlefield it would seem Professor Cleveland would accept, as she seemingly calling into question, for example, that persons could be "seized outside the area of conflict, while not directly participating in armed conflict." This would probably come as a surprise to both the Attorney General and the Solicitor General, who both agreed at their confirmation hearings, in response to a question from Senator Graham, that if someone were captured in the Philippines who was suspected of financing al Qaeda, that person would be considered as having been picked up on the battlefield.
