So Are They All Just Criminals?

by Benjamin Wittes

Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly–as I propose to do–isn’t your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby’s excellent work on this subject, that the substantive answer to her question is yes. Anyone (or almost anyone) detainable under the scheme as I envision it would, in an ideal world, be prosecutable as a criminal, for he has committed a crime. But we don’t live in an ideal world. In our actual world, there are likely to be prohibitive practical barriers to that prosecution in some cases; these are the problems that a reasonable detention scheme can constitutionally help alleviate. The debate turns heavily on how large and dangerous one believes that set of cases to be.

On the substantive side, there are likely people at Guantanamo (taking all government allegations as true for the purposes of argument) who committed no crime as the law stood in 2001. Since then, however, the laws have changed and almost any meaningful affiliation with, material support of, or training with Al Qaeda would now generate criminal liability. Bobby has argued powerfully that the problem is not in the scope of the detention authority the criminal law currently contemplates.

The problem, to be as candid as I know how to be on the point, lies in the quantity, quality, and admissibility of evidence of that criminality. What if, for example, you had a detainee transferred by Pakistani authorities, who also provided preponderant evidence, but not proof beyond a reasonable doubt, that the detainee in question was an Al Qaeda chemical weapons designer. And let’s also imagine that this evidence, while persuasive, had no convincing chain of custody and that the people who collected it would not be available to testify (indeed, perhaps the information is provided to the U.S. on the condition that its source not be revealed). This is simply not a prosecutable case. It does not follow from that, however, that there is no proper role for detention here. Indeed, I believe there are a lot of detainees, current and future, whose prosecutions will be impaired by such problems yet whom only a truly maladaptive society would set free.

If we do not create some lawful mechanism to handle detentions in such situations, the result will not be a great victory for human liberty. The result, rather, will be targets killings or detention in some kind of covert action; or the CIA will turn such people over to some foreign intelligence service that will hold them–much more brutally than we will–on our behalf.

I wish I could agree with Glenn that if you design the trial regime correctly, you could prosecute everyone you might need to detain. While I am sympathetic to the idea of designing a trial regime tailored to the war on terror, I just don’t think his prescription is plausible. Unless you reduce trial standards very far–and I’m not willing to do that–there is going to be a gap, I suspect, between the group you can prosecute and the group even a reasonable executive branch will want to keep locked up. The challenge, in my view, is to raise the standards for detention and lower the standards for trial sufficiently to alter the incentive structure that exists between the detention and trial regimes–which now militates overwhelmingly against bringing detainees to trial.

http://opiniojuris.org/2008/07/31/so-are-they-all-just-criminals/

One Response

  1. “who also provided preponderant evidence, but not proof beyond a reasonable doubt, that the detainee in question was an Al Qaeda chemical weapons designer”

    Now wait a minute – on the above case the person could be held as a GCIV security detainee or GCIII POW (until the end of the conflict).  No crime has been committed but in the armed conflict they could be held.  A crime might be charged for the security detainee like some kind of domestic law conspiracy charge a la Padilla or Amawi.

    If you do not have the evidence to prove even the kind of conspiracy-lite of a Padilla or Amawi, you do not have a triable crime.

    The guy makes you nervous and you want to hold him.  But for what, for some suspicion that he wants to do bad things?

    Mental illness administrative detention is an old Soviet era trick (you must be mentally ill because you do not like communism).

    There are people in the world who hate America and wish us bad.  We in America hate people in some countries and wish them or their leaders bad.  Yes, the world is not at a kumbayah moment.  That is nothing new under the sun.

    If outside of armed conflict, it seems the guy can be questioned and watched until enough evidence that proves a crime is developed.  In armed conflict the evidence is enough to detain him.

    The detention regime you think is so necessary is not humane at all.  How many places in the world do we have situations where secret incommunicado detention has been used and we have found it an awful thing?  Do we have to replay the tape so that in such future time we say “Oh, my bad.”?  There is no American exception that somehow we can create a regime for this case that will not be abusive.

    We can make us feel better by having first class lawyers put it together, but let us not think we are so clever that we can ensure that this mechanism would work differently than it has in every place where secret incommunicado detention has been used.

    Even situations of court review are not going to be error free when the evidence is low grade.

    It would seem that the thing to do would be to get more evidence so that you can make a charge stick when you grab him.

    This case appears to also be another variation on a ticking time bomb kind of idea.  To build a superstructure just to deal with this kind of case is to create a structure that will be used for much more than this case because the words never get you there to limit the Executive discretion.  We get into a “round up the usual suspects” situation.

    Take a guy like Murat Kurnaz – picked up by the Pakistanis and held by us for years based on crap.  Come on folks, get real.

    If you want to sweep up people because you want them out of your way, just accept you are going the route of secret police etc that has not been a very good experience in the world’s history.  If you long for those structures, you appear to have missed the fundamental lesson of the fall of Communism.

    The detention route is basically trying to do things on the cheap – hey we hold him – while denaturing the society.

    Please stop being so fearful and panicky.  Please stop improvising.  Please look at what you need to do to get the person off the streets in a criminal model or an armed conflict model rather than mix the metaphors to create a space for a secret police apparatus and an expanded surveillance state.

    Don’t folks value dissent any more and a free space to express ideas even if they are repugnant?  Yes these guys can do bad things.  It seems that we have to do the things to make it impossible to get the WMD’s to take that off the table.  If we are going to play “wink wink” and go after leaders on bogus grounds, then we are just wasting time and energy.

    Best,
    Ben

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