Quick al-Marwalah Follow-Ups

by Marty Lederman

Well, Ben, much as I look forward to dining with you to discuss these issues further, I won’t take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces under the direction of the Taliban. Such detention would, as in Hamdi, be for the purpose of incapacitating him from returning to the field of battle under our enemy’s command in Afghanistan. If and when the Taliban gives up the fight, such detention would end.

If that’s all you meant to say about al-Marwalah, then I apologize for overreading that portion of your book. I had assumed, however, that al-Marwalah was your lead example of the need to authorize detention on “premises [that] differ fundamentally from those of wartime detentions,” namely, incarcerations “designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” Why did I think this? Because you write that “the reason to detain men like Al-Marwalah . . . [is] that trained ‘Arab fighers’ who ‘don’t know’ if they’re Al Qaeda members pose a prospective menace to American lives.” (my itals)

If by this you only meant a menace to the lives of our armed forces in Afghanistan, then I misunderstood you. I had thought you meant a threat to the lives of American civilians, due not to al-Marwalah’s place in the command structure of the Taliban, but instead because of his training and characterization of himself as an “Arab fighter.”

It’s not important, though, what you meant in the book or how I (mis)read you. Let’s get down to brass tacks: What if al-Marwalah had not been discovered with the Taliban on the “back lines”? What if all we knew about him were his own statements that you quote, and the fact that he received rifle training at the Al-Farouq camp? Could he be preventively detained? (You suggest he could be criminally tried, but I don’t see it. Since when is “taking training from Al Qaeda” a crime, even today?  [UPDATE:  Oops.  I was completely unfamiliar with 18 USC 2339D until Bobby mentioned it in a comment.  Wow.)

I'd think the the answer is "no," certainly under the AUMF or the Wilkinson opinion, and possibly under the Constitution, as well. Nor would I favor a new statute authorizing such detention. In this case, there's not even the slightest evidence that al-Marwalah is amenable to committing any terrorist acts, letting alone doing so against U.S. civilians at al-Qaeda's direction.

More important than this little squabble about al-Marwalah, however (although that does have the virtue of making the questions a bit more concrete), is what you call your "centerpiece" sentence: “The core of the authority should more or less track the domestic power to lock up the insane: A person should be subject to administrative detention if he is both a member or associate of opposing forces and dangerous for that reason.”

Notably, this sentence refers not to detention based on dangerousness evidenced by statements or beliefs, but instead to detention based on dangerousness demonstrated by association (of some unspecified manner and degree) with al Qaeda. This does get us a bit closer to one another, even if it is not yet sufficiently specified for statutory language. But boy, the logic of this is still rather far-reaching, no? Dangerousness evidenced by association with a violent group -- as grounds for non-criminal detention? Can the government indefinitely detain --without criminal process -- associates of crime families? Associates of street gangs? Members of the Michigan militia (or those who have received training at their camps)? Generally, no, we can't -- not even if they're non-resident aliens. Indeed, unless there is proof beyond a reasonable doubt that he committed an offense, agreed to commit a crime, or intended to commit a crime and took a substantial step toward that end, we can't even convict such a person based on the "dangerousness" that their associations might establish. So why the difference here -- the jump all the way to civil commitment?

The analogy to detention of the mentally ill does not work, I'm afraid. Proof of dangerousness resulting from mental illness is not constitutionally sufficient as grounds for civil detention: The state must also prove "a special and serious lack of ability to control [one's] behavior.” Kansas v. Crane. And it is constitutionally necessary to draw this additional distinction — between the ill-and-dangerous on teh one hand and those who are dangerous because they cannot control their behavior on the other — “lest ‘civil commitment’ become a ‘mechanism for retribution or general deterrence’–functions properly those of criminal law, not civil commitment.‘”

I’m not suggesting that lack of an ability to control one’s behavior is a necessary component of every preventive detention scheme. But the mental illness cases do demonstrate that something more is needed, besides simply proof of dangerousness, if the state wants to circumvent the criminal process, lest we begin to justify widespread preventive detention that is antithetical to our constitutional traditions. The trick — the difficult burden — is to figure out just what that extra “something” should be, once (or if) we venture outside the law-of-war model. And as of now, I’m much more comfortable leaving that question to the courts under the AUMF, to be worked out in cases such as al-Marri and Parhat, using the law of war as a template. After all, if we can’t come anywhere close to the magic formulation, even after all this posting, why do we think Congress could or would do any better? ;-)

http://opiniojuris.org/2008/07/31/quick-al-marwalah-follow-ups/

3 Responses

  1. Marty,

    This was discussed today at a hearing of the House Armed Forces Committee which included Gregory Katsas, DOJ Civil Division, and Col. Steve David, USA, the OMC Chief Defense Counsel. Only caught a bit of it towards the end, but it was of high interest.  

    It appears the government’s position going forward is that all habeas process under Boumediene is civil process, reading B. to  mean that because the detainees are not necessarily entitled to all the process due a normal criminal defendant, that detainee  proceedings per se are NOT criminal proceedings. The discussion was specific to confrontation rights, but it sounded like that would be their view generally.

  2. House Armed Services Cmte. Hearing on Supreme Court Decision on Guantanamo Detainees (July 31, 2008)

    Link for C-Span video HERE.

  3. If an American received basic training at Fort Dix, then you know he was a soldier and could reasonably assume that he still is a soldier unless he can show you his discharge papers. If a mujahid received basic training at al Farouq then you know he was recruited and trained by al Qaeda (who ran that camp) and can assume he was a soldier unless he can show that he returned to civilian life (and that does not mean that he retreated from a general battlefield defeat). Such a person is subject to detention under the laws of war, but should be treated as a POW. He generally cannot be charged with a crime, because being an enemy soldier cannot be criminalized no matter what nasty things you say about his army. The Japanese in WWII and the North Vietnamese tried to label downed US aircrews as “terrorists” and we would not allow it. We should not try to do the same with ordinary enemy foot soldiers. Although the fact that enemy soldiers are dangerous may motivate us to detain them, a finding of dangerousness is not required to hold them as POWs. A cook can be detained, although he is dangerous to nobody (although those who eat his cooking may disagree).

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