The al-Marwalah Detention

by Marty Lederman

I’m tentatively encouraged by Ben’s new articulated test for detainability, which is not everything I’d hope for (especially if the “impracticability of criminal trial” prong is read broadly), but begins to bridge the gap.

Ben’s proposal in his book, however, is much more troubling.

My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the AUMF — the maximum authority that the Constitution allows, per Judge Wilkinson — must be viewed as analogous to the traditional wartime detention authority, as translated to the new context of this noninternational conflict against a terrorist organization, and informed by the laws of war.

The detention authority Ben would have Congress authorize, by contrast, is one whose “premises differ fundamentally from those of wartime detentions” (p.162). In what way? Well, a “responsible” Congress “would treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” According to Ben, this acknowledgement is “a psychological Rubicon we simply need to cross.”

Sorry, but I’m staying on this (constitutional) side of that line. “Dangerousness,” as such — particularly dangerousness as evidenced primarily by one’s “deeply held beliefs” — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial. Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention. “General deterrence” of dangerous persons, the Court has repeatedly held, is a function “properly . . . of criminal law, not civil commitment.” (Kansas v. Crane.)

Ben’s paradigmatic case for noncriminal detention illustrates the dangers. He points us to one GTMO detainee, Bashir Nasir al-Marwalah (p.158), and tells us that this is what the evidence shows: al-Marwalah attended a training camp in Afghanistan in 2000, at which he had rifle training on how to be a sniper. His stated goal was to learn to fight in Chechnya. He was caught while retreating, “with” the Taliban, from “the back lines” of the fight with the Northern Alliance. Ben does not suggest that he had been fighting the Alliance — al-Marwalah insisted that he had not, and that he had no reason or desire to fight Americans.

Of course, if al-Marwalah had been fighting coalition forces in Afghanistan, or had made himself subject to Taliban command and control, then the U.S. could detain him — only until the end of the conflict in Afghanistan with the Taliban. But Ben doesn’t suggest any such evidence and, anyway, that would be the war model that Ben expressly rejects.

So what is the ground for al-Marwalah’s detention, according to Ben? This: When asked whether he was a member of al Qaeda, he responded: “I don’t know. I know I am an Arab fighter.” According to Ben, “Arab fighters” who “don’t know” whether they are al Qaeda members “pose a prospective threat to American lives” (p.159) and for that reason can be indefinitely detained.

Notice the breadth of this proposal. On the evidence Ben presents, al-Marwalah does not satisfy any of Judge Wilkinson’s three criteria (or the first two criteria in Ben’s most recent post, for that matter): He is not established as a member of, or subject to the command and direction of, any organization, let alone one against whom Congress has authorized the use of military force. And there is no proof that has knowingly engaged, or planned to engage, in conduct that aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization. Indeed, there’s no evidence that he has ever had plans to harm any U.S. (or coalition) persons at all. Nor is there any proof that he has trained for, agreed to, or has a propensity to, engage in any terrorist activity, against anyone.

But he’s learned to shoot a rifle and he considers himself an “Arab fighter” who is equivocal or uncertain (or possibly dishonest) about whether that means he is a member of al Qaeda. And Ben presumably would, for that reason alone, have Congress authorize his indefinite detention — because Ben assumes, from these facts that al-Marwalah has “deeply held murderous beliefs.”

Doesn’t this prove much too much? If al-Marwalah can be detained without criminal process and proof, why not anyone, anywhere, who has advocated violent acts against the West? Anyone who has threatened to commit any felony? Anyone who has the (deeply held) intent to commit a felony but has not taken the “substantial steps” required to be culpable for an attempt? Anyone who has previously been convicted of a felony, including terrorism? — after all, being convicted of a crime is some of the strongest evidence of all that someone is a “menace to American lives” in the sense that there is a risk of further wrongdoing.

Our constitutional system ordinarily doesn’t allow this — does not permit the state to detain people upon a mere preponderance of evidence of dangerousness — let alone evidence that is primarily based on “beliefs” — in order to deter the possibility of crime. Something more is necessary, either procedurally (the time limitation of Salerno‘s pretrial detention), or substantively (e.g., the lack of ability to control one’s behavior in the mental illness cases; and in the traditional military detention setting, the absence of any crime and/or the fact that the person has a legal duty to obey the enemy’s command to fight). To be sure, cases such as Demore and Ludecke (to which Steve points) complicate this notion with respect to aliens, perhaps on the theory that their substantive due process rights are somewhat less than those of citizens. But those cases do not go nearly so far as to suggest that we can indefinitely detain anyone who professes to be an “Arab fighter” and who has received rifle training at an al-Qaeda camp — and, in any event, I don’t recall Ben placing any distinction on an alien/citizen distinction.

I’m not sure Wilkinson’s formulation or something like it provides enough by way of additional requirements to justify the denial of criminal process and burdens of proof, but at least it — like Ben’s newer formulation in his recent post — provides a great deal more than what Ben appears to advocate in his book. Those formulations, however, are expressly based on the traditional wartime detention model — focused on detention of those actual combatants subject to the direction of a legislatively declared military enemy — which is a model that Ben in his book proposes that we abandon.

http://opiniojuris.org/2008/07/31/the-al-marwalah-detention-rubicon-dont-cross-it/

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