Al-Marwallah’s Ears Must Be Burning

by Benjamin Wittes

A few final thoughts on detention and Al-Marwallah before we move on to interrogation–a subject on which I’m certain my arguments will provoke no disagreement. ;-)

First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification. I believe that someone like Al-Marwallah is detainable on the basis of the laws of war (as, with a little more hand-wringing than I would expend on the man, does Marty). In other words, we agree that he is very likely subject to lawful extra-criminal detention of some sort for some very long period of time. I do, however, also thing that if we are totally honest about why we want to detain people like Al-Marwallah, we have to acknowledge that our reasons are not quite the same as they are in conventional law of war detentions. In these more conventional detentions, we detain because the subject is an obvious (by dint of his uniform) arm of a state with whom we have a political difference unbridgeable except by the use of force. We consider the detainee an honorable figure to whom no opprobrium attaches and with whom we have no individual battle. And we offer him no–or almost no–process, because we assume there to be no doubt as to his identity, affiliation, or status. Moreover, we don’t sweat much over his liberty because we know he’ll be released at the termination of hostilities.

All of these premises are, well, lies in the context of Al-Marwallah. We are not detaining him simply as an arm of the Taliban or Al Qaeda; while the affiliation might be constitutionally essential to justify the detention, we are afraid of him in his individual capacity in a fashion that we simply don’t fear the individual German or Japanese troops. There is a continuum of such “Arab fighters”–from the true nothing burgers to Mohammed Khatani (fighter and would-be terrorist) to Mohammed Atta (terrorist of exceptional danger), and it’s very hard to tell the difference sometimes. Nor do we consider him an honorable soldier; in fact, we attach frightful judgments to him and his kind (the “worst of the worst,” etc.). What’s more, we do have an individual battle with such Al Qaeda members; if we someday released them all, after all, having won the battle, the fight would begin anew. As a consequence, we are not realistically going to release him at the “termination of hostilities”; the idea is a convenient fiction that defers the day of reckoning. We will release him, rather, if and when we can make satisfactory arrangements to manage the threat that he poses–a threat that we can’t analyze very well. Finally, while there may be little doubt about Al-Marwallah’s status, there is a lot of doubt about the status of other similar detainees–who consequently require more process than we would give in a conventional law of war setting.

My argument is simply that it would be more honest–given that we agree that such people are detainable–to detain them under substantive standards that more closely approach the actual reasons for the detention and under rules tailored for the situation in which we find ourselves.

Second, this brings me to a paradox in Marty’s position. Marty (more or less) accepts that we can detain Al-Marwallah under the laws of war–or, at least that the courts will so find. In other words, he accepts that we can lock someone up based on the substantive allegations the military has made against people like this based on both less process and a lesser substantive showing than the one I support. The law of war standards, after all, do not contemplate any showing of dangerousness; a Taliban foot-soldier, even one impressed into service, meet their standards, reasonably understood. Yet Marty regards my proposed standards, which would give more process in support of a more rigorous showing with more ongoing review, as unconstitutional. That seems to me altogether perverse.

The reason, as I understand his argument, is that there are a lot of dangerous people and we typically don’t regard dangerousness as enough to justify a detention. But nobody’s arguing for a pure dangerousness detention: ie, anyone who’s “dangerous” gets locked up. I’m talking about dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force. (Marty’s point that my use of the word “association” blows the barn door open is well taken. Let’s replace it for working purposes with “operating on behalf of.”) In almost all cases, such a statute would cover people who are already plausibly detainable under the laws of war but whom the laws of war don’t fit very well. The goal, as I see it, is not to expand detention authority but to tailor it to the task at hand.

http://opiniojuris.org/2008/08/01/al-marwallahs-ears-must-be-burning/

One Response

  1. Aren’t the laws of war standards the way they are precisely because we are in an armed conflict setting?  They are a recognition of the difficulties of proof to sort out things in the situation where armed conflict has begun.

    The settings you posit I think are situations where there is no armed conflict going on at the place the person is found.  It seems you fear these persons and want to lower the threshhold to be able to get them held.

    Persons like me fear these persons also but think the answer is in 1) improving surveillance rather than lowering the threshold, 2) using protective orders and the possibiity of civil or criminal contempt against persons for which the evidence is sufficiently compelling.  Don’t we start with good old “disturbing the peace”?

    The new detention regime debate seems to have a great deal of testosterone in it but maybe not enough progesterone.

    Best,
    Ben

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.