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Hills of Beans

Boumediene: Bloggingheads w/David Frum

I spent an hour yesterday debating Boumediene with David Frum on Bloggingheads TV. As is always the case in these debates, we finished and then I thought of all the things I forgot to say. Maybe some of you will go watch the "diavlog" and add to the debate yourselves. (I'm talking to you, Marty Lederman!)

From the Trenches to the Benches

Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines.  Let's consider two cases:

1.  a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken cover. Or b) an Air Force officer must decide whether to order an air strike against an al-Qaida safe house in a crowded neighborhood in Baghdad.

2.  a) A squad of American soldiers must decide whether to detain an Afghan villager who local witnesses say has transferred weapons to al-Qaida fighters. b) Months later, military officials must decide whether to release this person or continue to hold him.

Both sets of decisions are governed by international and domestic law—and I don't dispute the claim that it may well be in the interests of the United States to comply with international law (though I think this claim is more complicated than others do).

Let's now compare case 1b and 2b. As I understand it, currently the military vets bombing targets with military lawyers. Do you agree that this is a sensible practice? If so, why not use military judges rather than military lawyers? Wouldn't judges be more credible? And then why not civilian judges rather than military judges? Wouldn't civilian judges have more credibility still (and, according to Deborah, wouldn't they do a better job because they are so good with facts and law)? Now let me ask this question from the other direction. If you think that civilian judges should review the detention decision in case 2b, why not have civilian judges involved in the bombing decision of 1b (or civilian federal magistrates, if you want, who could issue kill warrants in the same way that they currently issue search warrants)?

Let's return to 1a and 2a. If we think civilian judges should be involved in cases 1b and 2b, or even just 2b, why not have them involved in the two (a) cases? True, we wouldn't expect them to ride on the tanks or set up shop at air bases. But we could easily have them review the cases after the fact. Indeed, a soldier who blows up a mosque for no reason or for a bad reason could be tried by a military judge for violating the laws of war. But if we prefer to have civilian judges review detention decisions, why not have a civilian judge conduct the trial of the soldier who destroys the mosque? After all, we don't trust the military, do we? Isn't this distrust of the military, or at least of the executive that controls it, the entire basis of Boumediene?* Why not require that targeting decisions—of all kinds, even at the rifle level—be reviewed by civilian judges after the fact, allowing the civilian judges to convict soldiers of violations of the law of war or domestic law?

And, as my air-strike example is supposed to illustrate, I think the distinction between operational and post hoc breaks down. If I am a soldier and I know that I can be put in jail for blowing up a mosque, then I will want operational legal advice for ambiguous cases, even if I don't need a warrant. The Army currently supplies operational advice to air commanders but not to tank commanders. Why does this make sense, exactly? Or does it?

Now, one could make the "this is a new kind of war" or "this is not a war at all" argument, and say that the United States can't detain people without civilian-judge level due process, indefinitely, in a nontraditional war with no foreseeable end without destroying its reputation for caring about the rule of law. But if this argument is correct, it applies equally to the targeting decision. It is, after all, even worse to drop bombs on houses and blow up mosques than to detain people indefinitely, and so if civilian judges are necessary to establish credibility for detentions, then they should be necessary to establish credibility for targeting. The arguments that various people have made in favor of Boumediene's result does not offer any principled basis for giving military judges or lawyers any role at all, in any type of "military" decision in our current nontraditional quasi-war, except to the extent where logistics require an on-site, in the midst-of-hostilities legal determination, and even then subsequent civilian judicial oversight should remain available after the fact.

Perhaps your view is that civilian judges can handle military detentions because they handle civilian detentions all the time. But civilian judges also handle civilian killings all the time (for example, police killings). The relevant consideration is not the act itself but the reasons for it: Can civilian judges handle military judgments as to the necessity of detaining one person and killing another? Does their experience with law enforcement prepare them to evaluate the political and national security reasons for detaining one person and killing another?

*Correction, June 25, 2008: This post originally misspelled Boumediene.  Apologies to those who thought that the post concerned the former president of Algeria.

From the Benches to the Trenches

Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions' own Judge Nancy Gertner) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.

Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.

But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.

But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.

A View of Scalia's Fantasy Life

Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying.

But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts "defer" to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.

The far more disturbing part of Eric's post, though, is this: "[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance." This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law. If that's a fair account of the point, Eric, we'll just have to agree to disagree.

Judges on Tanks

Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not:

For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.

Which is just to say that judges are capable of finding facts and applying the law. But the American legal system is shot through with institutions and doctrines that recognize that judges lack the competence to evaluate the decisions of specialized agencies that are charged with particular missions and that develop for that purpose qualified personnel, procedures, institutional memories, and all the other things that distinguish one institution from another. In such cases, judges defer. Judges defer to the fact-finding, policymaking, and legal interpretation of regulatory agencies, for example. They defer to the foreign policy judgments of the executive branch. And they have historically deferred to the judgments of the military—and no doubt will continue to do so, Boumediene or no Boumediene.

Orin thinks that the problem is one of fact-finding, but that is only one issue, and not the most important. The deeper problem is that no one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance. This has to be determined in incremental fashion, as events unfold, and only the military, with political guidance, is capable of making this judgment—a judgment about policy, security policy in particular.

The relevant question is whether a particular detainee would, if released, pose further danger to soldiers, civilians, and others, such that the benefits of continued detention exceed the many costs—including the financial cost, diplomatic pressure from foreign countries, harm to America's reputation (if any), and the harm to the individual in question. The answer in particular cases will turn on the particular terror-making talents of the detainee in question, his leadership abilities, the depth of his radicalism, the type of country to which he is to be returned (including whether authorities can keep tabs on him), the military's current logistical capacities, the current overall threat level, and much more. Note that given all these costs of detention, the release of someone who turns out to be dangerous is not necessarily an error—the judgment that the military is incompetent because it has released people who have gone back to fight is too hasty.

In any event, weighing all these factors is in the nature of a discretionary, administrative task, like that of deciding when and where to drop a bomb; judges are in no position to answer them. (I doubt that Congress is capable of, or willing to, answer them either; it would require candor that is politically inexpedient and a degree of foresight that no one possesses.) If we were to accept the implicit worldview in Deborah's post, one that does not take seriously the distinction between the judiciary and other institutions other than insisting that judges are superior, we ought to sheath judges in Kevlar robes and mount them on tanks, where they could find facts, develop a common law of national security, and enjoin soldiers to hold fire until they make the proper demonstration that a potential target poses a military threat and that destroying it will not violate the laws of war.

Terrorist ID

Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.

Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as "likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified." Let's take this in two steps. First, the "classified" part isn't obviously a problem for judges. Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the federal law passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that.

As for the nature of the evidence itself, I don't know anyone—military or civilian—who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible. Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited. But the claim that deciding how to handle hearsay evidence of dubious reliability is unfamiliar to Article III judges? Guess we must have had different profs for criminal procedure.

Can Judges Identify Terorrists?

Deborah asks an excellent question: "What is it in particular about Gitmo that courts can't handle?"

I don't expect judges to be very good at knowing who is or is not a terrorist because I doubt the evidence the government has resembles the kind of evidence judges are used to seeing. Judges are used to seeing particular kinds of evidence in particular kinds of hearings. They generally hear live testimony from live witnesses, evidence in sworn affidavits, and the like, and they apply familiar legal standards to the facts to reach a decision. Of course they make errors in those proceedings, but at least the type of evidence and the context is part of the familiar day-to-day experience of litigators and judges.

My sense is that the detainees were mostly seized in battle or were handed over based on hearsay by allied forces. In that setting, hard and clear evidence of the sort that judges are used to working with is likely to be relatively light, regardless of whether an individual is a hardened al-Qaida terrorist or just some unfortunate fellow who was in the wrong place at the wrong time. Instead, the evidence is likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified. Judges are smart people, but I would think that this evidence is likely to seem pretty foreign and unfamiliar to judges used to run-of-the-mill competency hearings, probable cause hearings, sentencings, and the like. 

Now, one response would be that if the government doesn't have the kind of strong evidence that the law usually requires to hold a person, then the detainees should be released. And if the judges end up releasing bad people who were held on very weak evidence, then that is the executive's fault rather than the court's. Maybe that's right. But if it's right, it's an argument about what the standard of judicial review should be, not whether judicial review is likely to lead to the release of bad people.

To be clear, I'm not saying that I think the institutional competence question should govern the issue. As I see it, whether the writ extends is distinct from whether judges are good at this stuff: Scalia's point about American lives being lost may or may not be right, but it shouldn't be relevant to the question of whether the habeas writ must extend to Guantanamo (although presumably it will be relevant to the subsequent determination of the proper standard of review down the road).

Scalia on the Battlefield

We may well never know about these particular 30. On the face of it, there are plenty of reasons not to take a Pentagon claim to the 30-detainees effect at face value. DoD hasn't exactly established an unblemished record of credibility on detention matters. And the data DoD have released leaves one wondering. For example, among the 30 DoD says it's counting are the five Uighurs who were released to Albania—these are the ethnic Muslim Chinese detainees who couldn't be sent back to China given the high likelihood they'd be tortured there and were instead taken in by the Albanians. As best one can discern, their only post-release "offense" to date seems to be having talked (from the comfort of their Albanian U.N. refugee facility) to Tim Golden at the New York Times about their time at Gitmo. Asymmetric warfare, I take it. One could go on. Or just read more about it in places like here or here. In any case, as I thought the recent McClatchy study of released Gitmo detainees helped show, Eric, it does looks like at least some of the folks who left Gitmo and then worked against the United States were indeed radicalized there—so they weren't particularly going "back" to the "battlefield;" they were joining it for the first time. 

Bigger picture, it seems to me Phil is right to point out that the military is the one who made the decision to let these particular guys out—presumably demonstrating that the existing detainee status-review process is not only rights-abusing but error-prone in every direction (keeping those who should be released, releasing those who perhaps should be still detained). On the other hand, is it possible that some former Gitmo detainees were let go and then did bad things? Yes. All the more reason to figure out how/whether we can do Gitmo better. 

So who better to do it? Here's where Orin and Eric lose me. Why assume, as Orin puts it, that because "[j]udges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't," judges are likely to do a worse job in making these status determinations than the military? I admit, that seems awfully counterintuitive to me. For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.

On the military side, there's some parallel experience to be found in the often very good military justice system and, to an extent, in the services' criminal investigative divisions, although of course we all know the military has engaged neither at Gitmo (either with respect to status hearings or to trial). Indeed, often in the institutional military equivalent of a status hearing—administrative, investigative-type proceedings in wartime—the first-order "judges" are just whomever the relevant field commander appoints (experience or indeed any relevant training not necessarily required, as I understand it). With respect to "mere" detainee status determinations in particular, the last time before 9/11 the U.S. military was involved in any major detention operation was the 1991 Iraq war—long enough ago for plenty of those folks with any actual hands-on experience in such ops to have left the service. And for those who remain, the 1991 cases turned out not to offer particularly relevant experience anyway, as it was made clear to the military they should not follow the same procedures this time around as it did then. 

The military houses plenty of smart people, of course, but is it an institution obviously better suited to deciding who's a terrorist and who's not? Eric says the reason it is has to do with comparative incentives: a military "judge" has a more immediate interest in getting the judgment right than a civilian judge. I dunno. Eric's point a) is speculative (most judges I know aren't crazy about terrorists either), b) assumes the military decisions aren't complicated by political guidance that skews their decision-making (not our recent experience), c) also wrongly assumes the military isn't thwarted by other federal government agencies with other incentives (like the CIA's apparent refusal to share evidence with the CSRTs), and d) assumes that these folks with the best interests at heart have the training and resources they need to make an informed decision (hasn't looked that way either). One could go on here, too.

In the meantime, I'm left with an impression: The courts have done pretty well with who's-who judgments and with far less of the devastatingly adverse strategic security consequences than our current Gitmo approach. And they have the power, at least in theory, by constitutional structure, judicial order, and institutional competence, to escape failings b), c), and d). So lemme try again: What is it in particular about Gitmo that courts can't handle?

The Canard That Didn't Quack

Orin is right to criticize Phil's canard-crushing post. Either Boumediene will result in substantive review of the military's detention decisions, or it will not. If not, then nothing has changed. If so, then courts will sometimes correctly overturn mistaken decisions to detain and will sometimes incorrectly overturn correct decisions to detain. (The contrary view—that courts make no mistakes—is not worth addressing.) The first type of outcome will result in nondangerous people going free; the second type of outcome will result in dangerous people going free. We already know that the military has set free dangerous people, and we also know that it has detained nondangerous people for a significant amount of time. As Orin points out, courts can't stop the military from releasing nondangerous people; the courts will focus only on the people that the military seeks to detain. Unless courts defer to the military's judgment, judges will release some of these people—and if judges make errors, as they do, they will release some dangerous people in addition to releasing some nondangerous people.

Many people talk as though the military would like nothing better than to incarcerate the entire populations of Afghanistan and Iraq. In fact, the military faces enormous logistic costs and gains nothing by detaining people who are not dangerous. So the military already has incentives to release the nondangerous and to detain the dangerous. Whether these incentives are adequate is impossible to say. It might be that the military doesn't put enough weight on the moral harm of detaining the nondangerous. It is possible that civilian judges will take that harm more seriously. It is also possible that civilian judges will overweight that harm, demanding an excessively high standard that results in the release of too many dangerous people. This is Scalia's concern; he overstates his case, but it is perfectly reasonable.

Finally, Phil conjectures that Gitmo radicalizes detainees, making them more likely to engage in terrorism if they are released. He seems to have in mind people who are not already radical but who are picked up incorrectly, yet people who are sufficiently inclined to violence that unfair treatment will push them over the edge. I suspect that if there are people in this category, they are not going to be mollified much by having a habeas proceeding. Once you start detaining and releasing people, you run the risk that they will be radicalized; this is just one of many costs—one suspects a pretty trivial one, next to the others that the detention regime creates. Ordinary law enforcement accepts this cost—we don't have a zero error rate for incarceration of suspected criminals even though we know that some people might be radicalized in prison. It is a cost that the military itself has every reason to take account of, without the need of habeas proceedings.

More on Scalia vs. Carter

Phil, I find myself in the awkward position of disagreeing both with Scalia's comments about Boumediene and your critique of them.

You offer three reasons why Scalia's comments are wrong. Your first point, that we are really at war with "a very diverse constellation of [radical Islamist] groups" rather that "radical Islamists" generally, sounds correct to me. But I'm not sure why it is relevant to Scalia's argument. Scalia's shorthand may have been imprecise, but I don't see that as such a critical error to the extent it was one at all.

Your second point, that we might release fewer bad terrorists with court fact-findings than military ones, seems unlikely to me. Presumably the availability of habeas relief only expands the group of people that may be released; I'm not sure how it would limit it. And while the military may make mistakes in releasing people who are dangerous, I would imagine judges will make more. Judges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't. The Constitution may require them to do it, but that doesn't mean they'll be good at it.

Your third point, that extending habeas jurisdiction to potential terrorists may lessen the threat the detainees pose by impressing them with our commitment to due process, also seems unlikely. The detainees have been held for six years, and any legal process will take a few more years; I doubt a detainee who gets out after a decade or so in Gitmo will think well of the United States for its judicial process.

To be clear, I'm not saying I agree with Justice Scalia's argument or the fact he made it. I don't. To begin with, I doubt Boumediene will have much practical effect. I predict it will prove to be a largely symbolic opinion, rather than one that will make a major difference in the real world.

Second, and more important, I think it's quite troublesome when Supreme Court justices devote large chunks of dissents (or worse yet, time in TV appearances) to decrying the practical impact of majority opinions. That only leaves the impression that the dissenting justice based his own vote on policy rather than law. I would rather judges apply the law as they see it and save the sound bites for the elected branches. But with that said, I'm not sure your post "crushed" Scalia's "canards" in quite the way you hoped.

Die Another Day

I'm glad Dahlia chose to open her "Breakfast Table" discussion with Walter Dellinger, Jack Goldsmith, and Cliff Sloan with a note about Boumediene—and Justice Antonin Scalia's absurd sky-is-falling dissent arguing that detainees will exit the habeas process to fight us again on the battlefield. Ever the public intellectual, Scalia took to the Charlie Rose show to offer this apocalyptic prediction:

Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.

Scalia's wrong, and his canards must be crushed.

First, it should be noted that Justice Scalia conflates and mischaracterizes the enemy in his dissent. In his third paragraph, he lumps together the actions of diametrically opposed terrorist groups, including the 1983 Hezbollah attack on a Marine barracks in Beirut and several al-Qaida attacks since then, to make a grand argument that "America is at war with radical Islamists."

In fact, different groups coming from very different traditions launched the attacks he lists in staccato fashion. It's wrong to list Hezbollah, a Shiite group supported by Iran, and al-Qaida, an extremist Sunni group aided over the course of its history by Pakistan and Saudi Arabia, in the same breath. We are not fighting a monolithic Islamist threat. Rather, we are engaged in a struggle against a very diverse constellation of groups. These groups' diversity creates tactical and strategic opportunities. (See, for e.g., the successful military diplomacy in Iraq which split Sunni moderates from Sunni extremists affiliated with al-Qaida in Iraq.) This may seem like a minor footnote to Justice Scalia. But it is a strategic error of grand proportions. And it's the same kind of strategic glaucoma the White House shows when it visualizes and describes America's global war on terrorism. 

Second, there's the point about detainees returning to the battlefield. As I wrote for Slate in October 2004, this, too, is a myth that obscures the real problems at the heart of our Guantanamo regime. The 30 detainees Scalia refers to effectively bulls---ted their way out of Gitmo. The military bought their stories and released them. Scalia sets up a false dichotomy by saying that judges will be to blame for more cases like these 30, unless we keep the military in charge. But the military is responsible for releasing these 30!!! At least with habeas corpus proceedings, or something like them, we might get a better factual inquiry than the sham tribunals being run by the Pentagon at Gitmo today.

But what's most absurd is this: Justice Scalia totally ignores the way Gitmo itself (and the lack of meaningful legal process there) radicalizes the detainee population. The real problem is not that we are now giving some modicum of due process (how much remains to be seen) to detainees. Rather, the problem is that we've created an extra-legal detention and interrogation regime and that this regime's output is a person more radical and prone to violence against the United States than when he entered Gitmo. If anything, the habeas proceedings will mitigate this by providing one small measure of justice to the detainees at Gitmo.

The Global War on Habeas

My op-Ee on Boumediene appears in this week's U.S. News and World Report online. My starting point is John Ashcroft's abortive proposal to suspend habeas corpus shortly after 9/11. The idea was quickly scuttled by Congress, but if we connect the dots between the treatment of Yasser Hamdi, Jose Padilla, and the detainees at Guantanamo, Bagram, and the CIA black sites, we'll see that the spirit of the proposal lived on: The Bush administration sought to get rid of habeas by other means.

continue reading at Balkinization ...

And Elsewhere on Capitol Hill

For what it's worth, Bill Kristol was on Fox News Sunday claiming that "very soon," Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key passage.

KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials.  And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ...

Senator Lindsey Graham is working on this.  And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, ‘Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous.

So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.

It's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?

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.

Getting the Truck Out of the Ditch

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.

Disagreements Both Modest and Fundamental

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.

Boumediene Three Days Out

First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.

Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.

As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.

Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.

In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.

Another Reason for Congress To Legislate

Many thanks to Marty for the kind words and thoughtful critique of my proposal. Two thoughts in initial response (I will probably have more later):

First, I did not mean my op-ed to suggest that Congress should act precipitously in the run-up to the election. While I do feel a sense of urgency about legislation in this area, it is far more important at this stage for any legislation to reflect the considered judgment of Congress and to emerge from a relationship of trust between Congress and the executive branch than for it to happen in the next six months. I hate quoting myself, but I really can’t say it better than I did in the conclusion of my book:

It is too late for the Bush administration. It has no trust on Capitol Hill, and it has no time. And even at this late date, it has too much ambivalence about the project—too much residual insistence that it has all the power it needs. ... Bush also has too much baggage. Locked in a death grip with its critics, his administration can at most speak credibly to a fraction of the country. For presidential leadership in this arena, America will have to await Bush’s successor.

So, yes, Marty, I’m happy to spend the summer relaxing and talking about legislation—instead of actually seeing Congress pass legislation. And I’m delighted that you and I have so much common ground on the ultimate substance of that legislation.

Second, in my previous post, I outlined a set of practical reasons why I believe a legislative detention regime that places robust review of detentions at the front end makes more sense than simply treating all detainees as “enemy combatants” who challenge their status eventually in habeas corpus proceedings. These practical reasons, in my judgment, involve advantages both for detainees (innocent ones, at least) and for the government.

But there’s anothe