War Zones, Substance, and Procedure in Terrorism Prosecutions
I’d like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan and Iraq, at least not when US forces are the ones involved in the capture. I’m not sure if anyone involved in this week’s debate thinks otherwise–Ben, Deborah, and others have all referred to their being an appropriate place for the traditional approach to military detention, and I assume that this is what they have in mind.
That said, the question becomes whether to revert to a traditional prosecute-or-surveil approach or develop a hybrid framework, when dealing with persons captured outside the conventional combat setting (e.g., Boumediene and other GTMO detainees who were arrested in Bosnia). It seems to be common ground that it is good policy, at least, to use the domestic criminal justice system if at all possible, and that the heart of the debate concerns whether there truly is, as Ben contends, a set of cases where that system won’t result in detention despite a manifest need to incapacitate a dangerous person.
That question has precipitated a recent outpouring of discussion regarding the substantive and procedural scope of the domestic prosecution system. Consider, for example, this impressive report that Zabel & Benjamin have written for HRF. In keeping with Deborah’s comments below, those authors conclude that the substantive scope of federal criminal law relating to terrorism is more than adequate to the task, and that possible procedural problems are not all they are cracked up to be (contrary to Ben’s position). Are they correct?
Substance: I’ve written extensively about the substantive scope of federal criminal law relating to terrorism, with an emphasis on conspiracy liability and material support (see, e.g., here and here). Based on that research, I must say I agree that there are relatively few scenarios in which we plausibly would want to incapacitate a person but lwould lack any relevant substantive offense to charge, setting aside evidentiary and procedural concerns. The 1996 material support statute, for example, can and has been used to prosecute individuals for providing themselves as “personnel” to a designated foreign terrorist organization (see, e.g., the Lackawanna Six), and a conspiracy charge worked fine in the Padilla prosecution even though the allegations and proof at no point sought to link him to any particular plot. There is a question here regarding sentence lengths (median sentences in material support cases, for example, hover around 10 years). But that aside, substance is not a signficant obstacle, at least not so long as we are willing to live with exceptionally broad concepts of anticipatory liability, the risks that they will seep into other areas of the law, and the possibility that they will expand further if asked to carry the full weight of terrorism prevention in difficult cases.
Procedure: Procedure presents a closer call, I think. The biggest questions to be resolved, it seems to me, all fall under the heading of reconciling the intelligence community’s interest in preserving sources & methods with the defendant’s due process and other fair trial rights. One way in which this tension arises that is not often discussed involves the government’s Bradyobligation to disclose exculpatory evidence (and other, similar obligations it has). It is well-established that such information must be located and disclosed when in the possession of the prosecution team, but how far beyond that circle the obligation runs is much less clear. With some terrorism suspects, there will be substantial reason to believe that NSA, CIA, DIA, or other entities may have a considerable amount of data, including information that would be subject to disclosure if held by prosecutors. Courts may or may not find that these obligations extend to such entities. And that brings us to CIPA, which as Deborah notes is widely-credited with successfully reconciling just such tensions. CIPA has indeed been quite successful, but it is important to emphasize that it does not actually resolve the secrecy-vs-fairness tension; rather, it provides a process designed to ensure that this tension does not come to a head unless that is absolutely unavoidable. Where the tension does come to a head, the government is faced with the obligation to either give up on its secrecy interests or else face sanctions (including the dismissal of charges). This is the prospect that we have to be worried about insofar as we push more of the burden of terrorism detention into the criminal justice system. It may be that the problem won’t actually arise often, or even at all. Or it may prove a huge obstacle in some cases. I don’t think any of us are in a great position to know for sure.