There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take, Roger to the Israelis’, and Bobby to Gabor Rona’s), or who should we be able to be able to detain in the interest of effective counterterrorism (Ben offers a concrete suggestion in his last post, and I’ve written elsewhere on this as well).

There are a few areas in which (I think we may all agree) the current law of “who” seems to match up more or less with current needs. If someone’s actually committed or attempted to commit an act of terrorism that can be demonstrated in court, the criminal law gives us plenty of authority to hold this guy (and try him). Likewise, if someone shoots at American soldiers on behalf of a foreign state (and this action is part of a more general conflict between their soldiers and ours), the Geneva Convention regime fits him fairly well, and detention is understandably authorized either under an act of Congress (like the AUMF) and/or the President’s Article II powers as informed/limited by the international laws of war.

So what’s in the gap between who we can detain and who we need to detain Ben and others seek to fill? Ben’s last post puts this case on the table: “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.”

As I read this, criteria (2) squarely puts this guy in the realm of criminal prosecutability. He’s actually engaging in conduct (as opposed to mere membership) that violates federal criminal law (particularly given the enormous current list of crimes prohibiting attempting or contributing to anything like terrorism). So why, despite this, might a criminal trial be “impracticable at this time”? The problem of how to handle the important dilemma of balancing classified information with defendant confrontation rights is one that Congress has already addressed in detail in a statute known as CIPA. I could imagine amendments to that law being in order, but I’d be interested to know Ben or others’ suggestions for how those amendments should go. Is it that allied intelligence services have told us this is a bad guy but prohibited us from using their statements in court, and we need more time to build a criminal case of our own against him? Sounds like at most what would be in order there is something like an amendment to the federal bail law, to give law enforcement and intel agencies a bit more time (than the already pretty lengthy pretrial detention rules permit) to build a case.

To pick up on Ben and Marty’s exchange in the comments, let me quickly address one other potential ‘impracticability,’ which deserves serious thought. What about where there’s evidence of a crime by a preponderance of the evidence but not beyond a reasonable doubt? Do we really just let this guy go, or risk letting this guy go by subjecting him to a standard criminal trial? Well, what are the options? If we let him go, we likely have some not insubstantial opportunities to track him, to learn more about him and his associates, and potentially to build a different case (or gather tactical intelligence) down the road. The downside is clear: if we’re right about him, he may do us harm.

Alternatively, we could detain him “preventively,” based on some but not overwhelming evidence that he may do something wrong someday, with periodic review to determine whether we still think he’s a problem. It’s this latter option brings to mind (at least) two major concerns I haven’t yet been able to overcome. First, I have a hard time understanding what additional information would ever come to light that would persuade us to order this man’s release. Proof positive he’s not guilty? Changed his ways? How would such a negative ever be established? Second, and especially given this, I can’t quite see how a system of detaining such a person would ultimately prevent more terrorist acts that it promotes. If the guy is intent on doing us harm, detaining him might prevent him from participating in any particular plot. But (with apologies for referencing my own work) if security analyses of the nature of al Qaeda and associated jihadist threats are to be believed, the whole problem is that men like this grow on the proverbial trees. Worse, if we detain too many such men for too long, or detain the wrong men, or detain men under a system believed to be illegitimate – we trade his particular incapacitation for the need to incapacitate many more. What this vision describes is an approach to detention that fails ultimately to prevent an attack, but that succeeds in enhancing terrorist recruiting efforts overall.

To be clear, I wouldn’t categorically rule out adjustments to our existing elaborate criminal counterterrorism regime. I would need some further persuasion/evidence of exactly what adjustments are needed. But I wouldn’t view these problems as grounds for an entirely new architecture of federal terrorism detention powers. The particular guy Ben describes is, as best I can tell, a criminal. What about him should redefine our concept of detention?

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Howard Gilbert
Howard Gilbert

POWs are not limited to battlefield capture, and need not be people who have engaged in combat. With a conventional enemy army, anyone in uniform may be captured, including the cook who spent the war peeling potatoes or the file clerk who shuffles paper. Any member of the enemy armed services contributes to the war effort, and the purpose of detention in international law is to deny the enemy army their services for the duration of the hostilities. In the current conflict the enemy does not wear a uniform or carry the required military ID card. Some argue this means they are not entitled to protection under Article 4 of the Third Geneva Convention, but I read that article as providing protection to what the enemy regards as its regular armed forces, not what we regard as regular. This is important in some pending cases. Binyam Mohammed was to be the partner of Jose Padilla in “the apartments operation” (which was to be the next attack by KSM after 9/11). One of his MCA charges is that he helped Padilla look up information on building a dirty bomb. If, however, he was a member of the regular armed forces of the government… Read more »