31 Jul More Detention Cases
A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in effect at that time may not (emphasize may) have had the requisite extraterritorial scope. Any such lacuna in the substantive scope of the criminal law has since been corrected. Mr. Al-Marwallah, were he arrested today and gave uncoerced statements about his receipt of terrorist training, would be precisely prosecutable under at least two federal criminal laws I can think of, with few problems beyond. I believe we can handle the Mr. Al-Marwallah’s of the world today. No further legislation necessary. (As for Mr. Al-Marwallah himself, I’ll leave to Marty to detail the theory under AUMF, etc. as to what should happen now.)
Second, the harder case of the putative Pakistani chemical weapons scientist who, according to marginal evidence offered in secret by the Pakistanis, is working for Al Qaeda. What are the options (again, setting aside for the moment what Ben views as insufficiently well developed AUMF and law-of-war possibilities)? Ben is almost certainly right that based solely on this information alone, the prosecution is unlikely to prevail at trial. The good news is (a) we now have a powerful lead on a potentially incredibly important source of information (what does he do with his days, who does he talk to, whence the money in any active account, etc.), and (b) the amount of information we have about him is not static. If we’re doing our intelligence and law enforcement jobs, and this guy is really who the Pakistanis say, it seems as though we’d want to make it part of our task to find something (and under current law, it needn’t be much) to prosecute him for. At a minimum, we’d want to know more about him from sources other than the detainee himself.
Should we hold him until we can build a more solid evidentiary basis for prosecution? Quite possibly (though that of course sacrifices some potential intelligence we could develop if we were able to track him). But if the current sometimes years-long pretrial detention already available in terrorist cases is not enough to build a stronger case, then we should consider some relevant amendment to the Bail Reform Act (which is, after all, has courts currently tasked with making pretrial release decisions based on an assessment of dangerousness to the community). What I can’t see as in our interest is a detention system that doesn’t contemplate some relatively near-term criminal prosecution or release. For reasons I’ve noted before, I believe the reality of mere periodic review of dangerousness or the like means effectively holding this guy forever. And this is a strategic burden I do not believe our long-term goals in combating terrorism will bear.
On the criminalization of training: there is a remaining gap in this area, one that I’m not quite certain how best to close. The key statute here is 18 USC 2339D, enacted in 2004. This law makes it a crime to receive military-style training from a designated foreign terrorist organization (DFTO). Which is terrific (prior to 2339D, there were efforts to fit this same notion under the rubric of the material support statute, 18 USC 2339B; that didn’t pan out, however, because that statute prohibits the provision but not the receipt of training). The problem, though, is that 2339D won’t work if the government can’t prove beyond a reasonable doubt that the training camp involved was in some meaningful sense operated by a DFTO such as al Qaeda. And that won’t always be easy, or even possible, to do given the complexities of the jihad movement (including in particular in current circumstances in the FATA region in Pakistan). One could close that gap with a flat-out prohibition on the receipt of military-style training outside the US from any non-governmental provider, though that raises lots of complex questions about how you avoid unreasonable applications…