Thoughts on Detention

by Benjamin Wittes

There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone’s indulgence to bunch posts and arguments together. If I’m skipping over important points in doing so, just call me on it and I’ll try to circle back.

Let me start with the broad question of what a new detention regime would look like and how, specifically, it would differ from the current system of anemic CSRT review followed by habeas litigation. In my view, the basic problem with the current regime is two-fold: first, as we’ve been discussing, the standards, protections, and procedures, are all underdeveloped and could develop badly in any of a number of ways; second and less discussed, because the CSRTs themselves are such a weak instrument, the record they generate and that the government then has to defend before a habeas court–or the DTA-review court–is a total mess. My essential argument is that both the detainees’ rights and the government’s interests would be served better by a system in which a serious process up front authorized the detention that followed. The innocent detainee would get an earlier opportunity to clear up the misunderstandings that led to his arrest. And the government, when it prevailed, would prevail with a record worthy of respect and deference from the reviewing courts. Habeas would then look more like habeas review of state convictions than like the Gitmo cases–in which the habeas courts properly understand themselves as the front-line of real review. Such a system would also require the government to think hard at the outset of each detention about how it would justify that detention in court. And it would force the courts to say early on that a detention is justified so that the executive is not out on a limb on its own for years.

Ideally, this system would not be a military detention at all, but a civilian one. This sense of the ideal, to some degree, pulls me away from both Judge Wilkinson’s excellent opinion in the Al Marri case and the fascinating Israeli supreme court opinion on the unlawful enemy combatant law. To my mind, one of the useful aspects of a new statute would be to begin severing–wholly or partly–war on terror detentions from notions of warfare and soldiering to which they are only relatable by analogy and to begin building a legal basis for these detentions that rests more directly on their peculiar realities.

That said, I think both opinions provide a lot of useful guidance on the definition of the detainable class. On this point, see as well Matthew Waxman’s excellent new paper, which is part of a paper series I am editing on the statutory architecture of counterterrorism. Wilkinson’s criteria, in particular, seem to me an excellent place to begin–though, as Bobby rightly points out, each of them begs questions even while answering them (in particular, I’m not sure if it makes sense to talk about “membership” in Al Qaeda).

For whatever it’s worth, I throw out the following criteria for discussion–not because I am sure they are sound, but they’re the criteria I’m thinking about these days: Under a statutory regime of the type I envision and following the up front procedures outlined above, a court should approve the detention of someone who is (1) operating on behalf of and subject to the direction of any group against which Congress has authorized the use of force, (2) who is engaged in, planning, or intentionally contributing to activity that poses a danger to the United States, and (3) against whom a criminal trial is impracticable at this time.

http://opiniojuris.org/2008/07/30/thoughts-on-detention/

4 Responses

  1. Ben:  Would the third factor be applicable if the trial was “impracticable” because of any of the following?:

    (i) the necessary evidence was obtained coercively; or

    (ii) the government doesn’t want to reveal how it interrogated witnesses; or

    (iii) the government wants to continue interrogating the defendant without a lawyer; or

    (iv) there is proof of a crime by a preponderance, but not beyond a reasonable doubt.

  2. (i) I don’t know. I think this is the hardest question of all. I would exclude coercively obtained evidence from consideration under this detention regime, but that still leaves questions like the Kahtani case. We presumably don’t need his coercively obtained statements to justify his detention, but we could–presumably–try him but for the circumstances of his interrogation. So maybe, if I’m being totally honest, I would have to say that yes, “impracticability” includes the impracticability that proceeds from our own misdeeds. But I say that with full awareness of the thicket I’m walking into–and with no confidence that it’s right.
    (ii) No. I don’t think secrecy about interrogation tactics justifies the use of an alternative detention system.
    (iii) I would not restrict detainee access to counsel, so I don’t imagine this situation would arise under the system I envision–at least not prospectively.
    (iv) I think it probably would, yes.

  3.  (1) operating on behalf of and subject to the direction of any group against which Congress has authorized the use of force, (2) who is engaged in, planning, or intentionally contributing to activity that poses a danger to the United States, and (3) against whom a criminal trial is impracticable at this time.

    There goes the civil rights movement, most other movemenets, and most demonstrations.  Hey objecting to police brutality would be argued to be acting on behalf of the Black Panthers because the person wore a dashiki like them.  Then, ah the task of proving the negative – what a wonderful task.  Reminds me of the Japanese internment cases and proving one was a loyal American (read think only the thoughts of the Booboisie per H.L. mencken) Let’s just sit in our corners and fear thinking anything but what the government feeds us as pablum.  Folks, please give me a break.  We can sort ourselves into closed spaces where everyone thinks alike and cower in fear, but some robust space for discourse would seem to be essential hear.  The above harkens back to House Unamerican Activities Committee nonsense.  Sorry to be so harsh but it is important that harshness be heard about all these ideas that float in something of an echo chamber.
    Best,
    Ben

  4. Well I think Mr. Waxman’s article is a good illustration of just how far off the rails this discussion really is. For example, he states:

    “The answers to these questions seem obvious at first. We should detain individuals to prevent terrorism and, to that end, we should detain terrorists. And with those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain[...]”

    What’s obvious is that “terrorism” is just another name for the ordinary crimes of murder and mayhem, and that society has just as much interest in preventing every murder as it does in preventing any other. The criminal justice system has developed in the shape it has over the centuries because it’s the best you can do without exposing society to the danger of tyrants simply making people disappear for all the sundry reasons that tyrants abuse people; and it’s absolutely clear that the primary purpose of the US Constitution was intended to prevent exactly that sort of abuse on the understanding that the greatest danger to the safety of any society is the possibility of it own government degenerating into a tyranny.

    Detaining people merely on suspicion is simply not a viable approach. If it was genuinely effective, it would have been institutionalized long before now. But it’s not effective at all outside the realm of political expedience and propaganda; it’s the the basic apparatus of tyranny.

    We’ve spent thousands of years trying to that sort of abuse, and the argument there amounts to the notion that Hitler and Stalin were just ahead of their time — they used exactly the the same excuses to rationalize preventative detention of their perceived enemies, and t o operate this sort of system requires exactly the same methods they used. Where is there any distinction? Only in the comfy notion that we are good and Nazis are evil regardless of what we actually do.

    This despite all the history we have concerning the treatment of suspected witches, heretics, and enemies of the state.

    This despite our stated commitment to the principle that all people are equal and have the same basic human rights.

    This despite all the evidence we have of the Bush administration’s crimes against prisoners, citizens included.

    You either have sufficient evidence to prove a criminal charge or you don’t — there is no in-between, and we have exactly the same interest in preventing every murder that we do in preventing whatever subset of murders that anyone wants to redefine as “terrorism”.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.