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Picking up where my last post left off. ... The policy goal is clear: The U.S. government need a detention scheme that protects as many innocent Americans as possible from becoming victims of terrorist attacks.
It seems to me there are at least four kinds of people we want to think about detaining. (By putting them in categories, I don't mean to suggest there's no overlap between them. I'm betting folks often fall into more than one category at once. I'm just trying to, as Ben would say, "game out" the possibilities. I'm keen to know what this first cut leaves out.) (1) Anyone who's been involved in an al-Qaida plot and anyone who's taken any steps to be involved in such a plot. (2) If we go to war in a country like, say, Afghanistan, we'll want to keep as many of "them" out of combat as possible so we can win and get our own folks home as quickly and as safely as possible. (3) There might be folks in New York or Iowa or Zimbabwe we want to pick up and question. They haven't done anything wrong. But they might know someone who has. (4) And there's Joe Schmo, who walks into a bar and says, "Hi. I'm from al-Qaida. Can't wait to kill some of you innocent Americans." And then he sits down for a drink with some of his pals.
Can we detain these people? To me, there's little question that the power (and procedural requirements) for detaining (1) and (2) exist under current law domestic and international law (circa 2001 and more so today). Category (1) especially goes pretty far. All a would-be detainee has to do is offer anything that looks like "material support" to anyone thinking about a plot. And he doesn't even have to do it in the United States. These days, there are a host of federal criminal laws with broad extraterritorial scope (including a ban on terrorist training, broadly defined). And Category (2)—covered by the existing law of war and international human rights law (where the law of war leaves gaps)—addresses both "international" (in the sense of state-vs.-state) and "noninternational" (in the sense of nonstate-actor involvement) armed conflicts. Is the exact scope of these laws clear? No. But there's a pretty broad area of agreement about what they cover at a minimum. And it undoubtedly includes anyone we find in, say, Afghanistan after we invade.
Now it gets trickier. Can we detain someone purely for the purpose of asking them questions? Well, we can ask anything we want of anyone otherwise properly detained under the criminal law or the law of war (or immigration detention laws or civil commitment laws or material witness laws or pretrial detention laws). And especially if we don't alienate neighborhoods where we might find informants, we can talk to anyone who'll talk to us voluntarily. Beyond that, though, we'd need (at a minimum—since international law has unfavorable things to say about such detentions) a new law passed by Congress. And existing constitutional jurisprudence makes it clear any new "interrogative detention" regime would at a minimum have to come within some pretty strict procedural limits and even then is almost certain to be challenged in the courts. It would have to be time-limited (the state has a plausible interest in questioning folks, but there are enormous individual liberty interests that must be taken into account on the other side). For the same reasons, it would have to afford any detainee at a minimum speedy access to counsel and to review, some sort of hearing giving each side a chance to present evidence, and some kind of evidentiary burden on the government to show why there's any reason it should want to detain this particular individual. The scheme will have to apply equally to citizens and noncitizens (so we don't run afoul of equal protection). And of course, of course, we can't treat anyone cruelly.
So let's ask the FBI and CIA if, under these conditions, they think such a scheme would help. Based on my offline (and admittedly nonscientific and nonexhaustive) conversations with interrogators, I think they'd say that anyone who wants to talk with us will talk—and would've talked voluntarily without custody. And anyone who doesn't want to talk with us won't—and still won't after 48, 72, or 96 hours in custody. Especially without the threat of, say, prosecution and life imprisonment hanging over their heads. In the meantime, we'd better start working hard to develop a real human intelligence capacity—one that doesn't rely on custodial interrogation but rather on good old fashioned Arabic-speaking spycraft. That's my guess; I could be wrong about what's needed to be helpful. So I'd welcome further insight here.
And now the doozy—the al-Qaida who walks into a bar. Can we detain someone who says he's al-Qaida but hasn't apparently done anything about it? Circa Sept. 11, 2001, no. Anyone in this country at least has a First Amendment (among others) right to say anything. As long as they're not inciting imminent lawless action, not much to be done except (and this shouldn't be discounted) watch them (lawfully) like a hawk. And I don't believe the president's inherent authority extends so far as to entitle him, in the absence of an armed conflict, to swoop in anywhere in the world and detain anyone he wants. Circa today, there's the Authorization for the Use of Military Force passed by Congress. And as I pointed out in the last post, we're likely to find out via the Gitmo habeas proceedings whether the AUMF authorizes the detention of any old al-Qaida member. My suspicion is that some combination of the Constitution and international law forecloses a reading of the AUMF that would authorize the detention anytime, anywhere, of anyone who does no more (more or less) than say he's a member of al-Qaida. Marty may disagree.
But let's imagine the law already permits or could be revised so as to authorize the detention of self-described al-Qaida members. Would such a detention scheme—assuming a scheme with sterling procedural protections—help on balance to prevent more terrorist attacks? I find this question a very tough call. Here's why. So we've had this al-Qaida bar guy in "preventive" detention subject to periodic review for a period of years. He hasn't changed his tune; and we haven't found anything to charge him with. We've got two options: Release him or continue to detain. Releasing him might allow intelligence to track him and gain otherwise unavailable information about any plot he might undertake. Detaining him, on the other hand, might prevent him from participating in any particular plot. But if security analyses of the nature of al-Qaida and associated threats are to be believed, the whole problem is that men like this grow on the proverbial trees. He is replaceable. Worse, if we detain too many such men, or detain the wrong men, or detain men under a system of effectively indefinite detention believed (therefore) to be illegitimate, we trade his particular incapacitation for the need to incapacitate many more. This approach to detention thus fails ultimately to prevent an attack, but it succeeds in enhancing terrorist recruiting efforts overall. I need a fair bit more persuasion before I'm convinced to go down this road.
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Last week, David Brooks wrote
that current patterns of borrowing and consumption reflect the moral
decline of the American people. This argument raises several
interesting questions. First, has there ever been a time when opinion
leaders did not fuss about moral decline among the masses?
Second, if those leaders have been right, does that not mean that the
moral fiber of the community has been steadily declining since caveman
times? I don't want to denigrate our remote ancestors, who were no
doubt good people in many ways. But they would need to have been
pelt-wearing, credit-card avoiding saints, if the Brooks-style moral
critics were all correct.
Third, if morals have not steadily declined since caveman
times, which seems highly likely, why is it that opinion leaders never
seem to celebrate an improvement in morality? After all, if we are no
worse than the cavemen (which seems likely), and there have been moral
declines in certain periods (which is possible), then there must have
been moral improvements to bring us back up to caveman level as well.
Even when indicators such as out-of-wedlock births or drug usage or
crime improve, as they do from time to time, opinion leaders never
attribute the improvement in behavior to moral betterment. If credit
card use increases, it is because of a decline in morals; but if credit
card use declines, it is because of an improvement in the law or the
spread of information or some such thing untainted by moralistic talk.
Why this asymmetry?
I can't think of any good reasons. Perhaps opinion leaders have
short memories. Brooks has forgotten about such epochs as the Gilded
Age; indeed, his condemnation of greedy financiers is even creakier and
more archaic than his condemnation of the feckless masses they have
swindled. Maybe these opinion leaders have trouble thinking of things
to say, and warnings about moral decline receive more attention than
celebrations of moral renewal. Or perhaps morality has never declined;
what happens is that moral rules change from time to time, and people
who like the old way think that morally neutral changes in social norms
must be symptoms of moral disintegration. Did caveman make the same
mistake and reminisce nostalgically about the moral integrity of their
monkey ancestors?
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Ben's very useful post throws the preventive-detention gauntlet right back at me—and that's fair enough. I'd suggested his approach conflates two separate problems: (1) getting the truck out of the detention ditch at Gitmo (its own unique mess), and (2) figuring out what kind of detention policy and laws the United States needs going forward to effectively address the terrorist threat (a threat I don't for a moment deny). Herewith, the first of two posts in response. This one proposes a getting-the-truck-out plan. The next will talk about trying to avoid the next mess.
I take our collective starting point at Gitmo to be a consensus that it's time to shut it down (given a host of ill effects I could detail, but I think we're all now onboard here). Best I can tell, at Gitmo today there are three broad categories of detainees whose situations needs resolution: folks who've done something wrong who should be tried; folks who the current administration has cleared for release but who have no place suitable to go (because, for example, they face torture in their home country or because their home country won't take them back); and folks who haven't demonstrably (or at all) done anything wrong but who we're understandably loathe to release because, for example, they've said, "I'm a member of al-Qaida and I can't wait to get back to the jihad."
For folks needing trial, I've recommended either courts martial or federal prosecution. The current military commissions are hopelessly (and rightly) tarnished as illegitimate, and any effort to revise or fix them will (a) take even more time (in no one's interest) and (b) not likely succeed in overcoming legitimacy problems. Will courts martial and/or federal prosecution face special challenges in these cases, like protecting classified information? No doubt, but for reasons I've alluded to in previous posts like this one or this one, I think these existing institutions far more accustomed, better suited, and demonstrably able to handle such questions. Might there be acquittals at such trials? Yes. Might KSM be acquitted? Ben, I'll up the ante and buy you a steak (or high-priced vegetarian) dinner of your choice if he is.
The folks who should be free but haven't yet been released (the Yemenis, the Uighurs, etc.) pose fundamentally a diplomatic problem. The existing law is clear on our obligation not to return them to places they're likely to be tortured. So we and our allies must find a suitable alternative home. I do not wish to undersell the difficulty and complexity here by calling it a "diplomatic" problem. I also would not wish to let the administration and its advocates believe that our treatment of our allies (and the rest of the world) in the past seven years has not made the resolution of this task substantially more difficult than it would/should have been. Because of the latter point, I think it is reasonable to expect we might see some diplomatic movement in any next administration—particularly a next administration that is visibly taking a series of real, unilateral steps to restore our credibility on matters of the rule of law, our interest in and respect for international partnerships, and our recognition that we can't combat terrorism without the help of our friends. Some of our allies have been talking a good human rights game; come January 2009, it'll be time for them to pony up. At least that's where I'd start. And while everyone's chatting it through (speaking of concrete, unilateral steps), I'd take these folks (and the folks I'm about to discuss) out of Gitmo and house them in a high-security military prison in the continental United States.
And what about the toughest group: those who have said they despise us but haven't yet demonstrably done anything about it (or anything that was prosecutable at the time they were captured)? Ben is right to note that classification of information—and, I would add, chronic unreliability of information from Gitmo that has been released—makes it impossible to identify from the outside how large a group this is. But let's assume it is not a null set. Here's why past acts matter. Had we given these folks Article 5 hearings in the first instance under the law of war, and kept them in Afghanistan (for those among this set who were captured thereabouts), I believe we could have lawfully continued to hold them in Afghanistan with modest periodic review until the conclusion of that conflict (which, contrary to part of the International Committee of the Red Cross' position, I believe can be understood to continue as a matter of U.S. and international law). I'm not crazy about how much leeway for lengthy detention the law of war provides here, but that's my reading of the law, at least with respect to those caught up in the armed conflict in/with Afghanistan.
But we didn't do that. And we've also now made Gitmo an international clearinghouse for (at least a handful of) folks we've picked up all over the world, like the Boumediene petitioners themselves, who are at best only arguably involved in an armed conflict within the meaning of international law and at best only arguably covered (sorry, Marty) by Congress' own AUMF. And most of all, we now have a ruling of the U.S. Supreme Court saying the Constitution entitles these people to petition for a writ of habeas corpus. Unless the next administration comes in and, upon actually reviewing the evidence, concludes some of these people should simply be released or (lawfully) transferred elsewhere for continued detention (and to me there is every incentive for a new administration to look at these cases closely and as publicly as possible), habeas must go forward. The government will put forward its best evidence. The detainees, represented by counsel, will put forward theirs. And the courts will decide in each case as a matter of substantive law (right, Ben?) whether their particular detention was authorized under U.S. and/or international law. The courts are best suited to this, in my view, because there was applicable law on the books at the time these men were detained, Congress has had two (unsuccessful) shots at constitutionally clarifying it, and the courts, in keeping with their constitutional charge, are accustomed to saying what the law is every day.
It seems as likely as not that many of those who care most deeply about human rights will be disappointed in the ultimate outcome of at least some of these cases. The AUMF as defined by extant international humanitarian and human rights laws, and as limited by constitutional due process, leaves room for a fair bit of detention (as even the ICRC understands). But I'd bet something even more than a steak dinner that if we do all this, we'll be (rightly) taking a lot less flack from the international community. We'll hang onto those who are really and truly dangerous (and might even have time to think about whether a little more investigation might help build a criminal case against them). And we'll have a clearer path to designing a vastly more sensible plan going forward.
So that's where I'm at today. But as ever, I'd be pleased to be learn more.
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There’s a lot of meat in Deborah’s and Marty’s posts to which I should respond. I’ll take on, first, Marty’s suggestion that habeas offers a good procedural device for resolving detention cases and then Deborah’s more fundamental suggestion that we shouldn’t let the bad case of Guantanamo make bad law on detentions more generally.
I am less sanguine than Marty is about the smoothness with which we can expect these habeas cases to proceed. But I tend to agree with him that the procedural problems are, on their own, manageable. That is, I don’t think the most difficult questions—the ones that will divide district courts and require yet another round of Supreme Court litigation to resolve—are procedural in nature. They are substantive. If we treat these detentions under the laws of war, we pose profound questions about (a) the scope of the detention authority under the laws of war, (b) the evidentiary threshold necessary to hold people, and (c) the duration of the detention authority in the context of the current conflict. (We also face profound questions in light of Boumediene about what substantive rights detainees have at Guantanamo, though the courts would confront this question in the context of a statutory detention regime as well.) The range of possible judicial holdings on each of these questions is enormous, and I really don’t see why it is preferable to leave their resolution—and the consequent parameters of our ultimate detention regime—to litigation, rather than to a considered legislative process.
It is important to understand how much common ground Marty and I really have here. We both believe that it is permissible to detain the enemy outside of the criminal justice system. We both believe that such detentions should be subject to meaningful judicial review. And we have broad, though not perfect, agreement over the general parameters of procedures to test the legality of detentions.
We disagree, as best as I can tell, largely over the proper source of the legal authority for these detentions. He believes, as does the administration (sorry for the low blow), that we should understand these detentions as a feature of the state of war that exists between the United States and al-Qaida. I believe, by contrast, that wartime detention power is a bad fit for many war on terror detainees and that we should therefore carve something new. Partly as a consequence of this difference and partly because of our different attitudes toward judicial power, Marty is content to resolve the contours of the current system through litigation, while I am keen to have Congress design a fresh detention system tailored for the problems at hand.
Deborah’s argument is, as I noted at the outset, more fundamental: She objects that in suggesting a preventive detention apparatus of any kind, I would “let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward.” My sympathy for this objection would be greater if I could muster the remotest confidence that an alternative really exists. I have, alas, no such confidence either with respect to the current detainee population at Gitmo or with respect to future captures of people against whom warrants are neither extant nor plausibly imminent. Nobody knows exactly how many current detainees are both too dangerous to set free and, for one reason or another, not amenable to trial. Without access to large volumes of classified information neither Deborah nor I has seen, we can only guess. For my part, I suspect that the number is pretty substantial. But one of the reasons I believe the legislation I support should wait for the next administration is that the Bush administration has zero credibility to make the case for this crucial proposition.
So let’s game out what happens in January if, say, Barack Obama wins the election. If his new administration comes in and declares that it believes that the United States can satisfy its baseline security interests by prosecuting those detainees against whom it can prove crimes, sending the rest home, and eschewing any preventive detention for non-battlefield captures or transfers in the future, I’ll concede that I jumped the gun in Law and the Long War and presupposed the necessity of a detention scheme that a reasonable executive branch turned out not to need. And Deborah, I will be so thrilled to be wrong that with joy in my heart, I would buy you lunch at a restaurant of your choice when you come to Washington in deserved intellectual and moral triumph over my panic.
But what if Obama comes into office and, like Marty and I, takes the position that—under one legal rubric or another—the executive needs some authority to detain al-Qaida people outside of the four corners of the criminal justice system? What if he declares that, as I suspect, about 100 to 125 people at Gitmo cannot plausibly face indictment but are too damn scary to send home and that, as president, he cannot assume the risk to American interests and civilians that they pose if set free? What if he comes in and declares that senior al-Qaida figures and major operatives—alleged 9/11 conspirator Mohammed Al-Khatani, for example—could never be tried in federal court or even military commissions because of the ugly circumstances of their interrogations, the interrogations of others, or more innocent deficiencies in certain evidence against them?
If you respond to this scenario by insisting upon the release of such people anyway and insisting in addition on not detaining such people in the future, then there is an unbridgeable divide between us. If, however, your answer to these questions is that you would, under those circumstances, be willing to contemplate the sort of regime I am talking about, I am happy to wait until January and let the facts be our guide.