Certification as Sabotage: Lessons from Guantanamo Bay

By Manners-Weber, David | The Yale Law Journal, March 2018 | Go to article overview

Certification as Sabotage: Lessons from Guantanamo Bay


Manners-Weber, David, The Yale Law Journal


INTRODUCTION

One of President Obama's most public failures was his inability to close the prison at Guantanamo Bay. He had campaigned against the facility throughout the 2008 election, (1) and on his second day in office signed an executive order ordering the base closed within a year. (2) But eight years later the prison remained defiantly open.

A major reason for this failure was congressional opposition. (3) While this opposition took different forms, one critical tool has received little attention: the certification requirements that governed the transfers of detainees from Guantanamo to foreign countries. Beginning in late 2010, Congress demanded that, prior to a detainee transfer, the Secretary of Defense certify that the receiving country had taken the steps "necessary to ensure that the individual cannot engage or re-engage in any terrorist activity." (4) While the precise language of this certification changed over time, its effect was the same: Congress's requirements made the Secretary of Defense "personally responsible for preventing recidivism," (5) accountable for any mistakes.

Certification requirements have long been thought of as a weak check on the Executive. "When push comes to shove, a certification requirement will not prevent the executive branch from acting, if it believes that there are compelling reasons to do so," wrote one commentator. (6) Yet at Guantanamo these requirements proved "devastating." (7) "As Secretary, that provision required that I sign my life away," said former Defense Secretary Leon Panetta. (8)

The success of certification requirements in stymieing Guantanamo's closure makes clear that it is time to rethink the narrative of their inefficacy. This Comment argues that certifications have been underestimated because they have been undertheorized. Certifications require an individual to attest that a state of affairs exists before a particular action can be taken. (9) Fundamentally, then, certifications should be understood as tools to localize accountability for a judgment. In the context of high stakes or uncertain decisions, this localization of responsibility concentrates the risk of blame: a decision may jeopardize the certifier's job security, personal welfare, and public image. While such concerns may not be the only guiding considerations of public officials, they are surely among them. (10) By heightening the risk of blame, certifications can change an individual's decisionmaking calculus, thereby becoming a stronger influence on executive action than the scholarly consensus acknowledges.

Part I surveys the existing literature on certifications before contrasting the literature's conclusions with the important role certifications played at Guantanamo Bay. The discrepancy shows that a new account is needed. Part II provides that new account, showing when certifications can be effective--that is, when they can influence the Executive to behave in ways it would have otherwise resisted. Part III leverages Part II's theoretical account to explore the 2015 American SAFE Act, a bill that would have imposed crippling certification requirements on the Iraqi and Syrian refugee programs. The American SAFE Act illustrates that the substantive and political power of certifications extends beyond Guantanamo Bay, while also revealing that legislators themselves have varying sophistication in their understanding of this power. The Comment concludes that, contrary to the prevailing scholarly view, certifications instituted under the right conditions can meaningfully shape executive policy making.

1. CERTIFICATIONS' UNDERAPPRECIATION

A. The Existing Scholarship

Congressional requirements that an executive officer personally attest to a policy decision are not new; they appeared early in both foreign and domestic policy. (11) However, certifications became much more common in foreign affairs beginning in the 1970s as Congress began to reassert itself against the President. …

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