The Preventive Detention Debate Under the Democrats

I sharply criticized New York Times reporter William Glaberson – the Times’s chief Guantanamo reporter – last week for, among other things, failing to take note of Benjamin Wittes and the centrality of his book, Law and the Long War.  I am happy to report that Glaberson has a new article out in today’s NYT, this time interviewing a wide range of people about the argument over preventive detention and a new Obama administration.  It has interesting quotes from Wittes, Jack Goldsmith, Elisa Massimino, and several others.  It’s a good piece, and makes plain the position of those (of us) who said flatly that a new administration, Democratic or Republican, would quickly discover that there is a certain number of people who will not be treated under what had been until (how to put this?) the Obama election (or, in the case of William Glaberson and the New York Times, the day before the election) the inviolable and pure and worthy standard of “charge them in Federal court or let them go.”  As Glaberson writes:

Now, as Mr. Obama moves closer to assuming responsibility for Guantánamo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guantánamo’s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?

That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.

I myself think that the hypocrisy is breathtaking, if entirely predictable, among those who, so long as it was the Bush administration, demanded nothing less than what Wittes described as the pure Kantian standard – and then switched once it became the Obama administration.  Organizations such as Human Rights First, under Elisa Massimino, to their credit, are continuing to insist on the same standard, and in that they have the virtue of moral consistency: I disagree substantively with the position, but they are not hypocrites.  

(Update, November 17, 2008:  Nor am I alone in raising this question! … see Michael Ratner’s blog here, mostly attacking (meritlessly, in my view, but anyway) Ben Wittes, but also flagging the issue of position-switching among liberals (Ben is a liberal, to be sure, just not a Kantian purist).  Some liberals, even unapologetically critical ones, have always held nuanced positions – Neil Katyal, for example, and there are many others, and obviously they can’t be charged with hypocrisy.  

For that matter, I have occasionally been told that the position of the left, the civil liberties groups, and the human rights groups is in fact overall far more nuanced than saying ‘charge them in Federal court or let them go’, and I am thus merely raising a strawman by suggesting anyone serious holds the ‘tough’ and ‘pure’ position.  Hmm.  It would be hard to overstate CCR’s importance in the current debate, and purity is certainly Ratner’s position.  It is hard for me to think of anything important on which I agree with Ratner, but I do admire his insistence on sticking what he has always said.

The interesting question is at this point not who has hithertofor held the “charge them or let them go” position, since it has included so very many from HRF to the UN’s Martin Scheinemann (asserting, remarkably, that this is demanded by international law and not merely US constitutional law; see his panel discussion with me at ASIL last year and his formal reports to the UN).  No, the interesting question is who has held this position and is now discovering … nuance, just in time for the Obama administration.  If you understand the New York Times front page to be, as I do, an opinion magazine akin to Slate or The New Republic, then it is one party that seems to have switched its view, or gotten very close to it, on whether it’s okay to hold some number of detainees without trial without quite saying so, as I noted in my earlier post about Glaberson’s earlier article.  

But as long as I’m being rude, let me just go ahead and be really rude and ask how many people are considering switching their position and discovering nuance just in time for … an Obama administration job?  I do not know – I am not being coy when I say I don’t have anyone in mind.  Maybe no one does.  And maybe it is, very strictly speaking, possible to believe that the same action is not okay under Bush administration but okay under an Obama administration because the former’s heart is polluted while the latter’s heart is pure – sincerity as a purely logical possibility, as it were – and so one cannot of necessity be convicted of hypocrisy.  But the question of hypocrisy is not a crazy question to ask.  End of Update.)

My current prediction for how this will play out is:  

• First, the Obama administration will bring everyone back from Guantanamo, and stick them in Leavenworth or someplace similar; this will allow it to announce to the masses globally who don’t really follow this stuff that it has closed Guantanamo without noting that it has moved everyone en masse elsewhere. 
• Second, the current military tribunal trials will be shut down; they have turned into a fiasco anyway.
• Third, lots of people will be charged with relatively modest offenses that have relatively modest evidentiary requirements, and some number will get convicted, and more still with sentences limited to time already spent at Guantanamo.  
• These trials might draw upon what, to my then-amazement, was offered by human rights groups a couple of years ago in multiple conferences as the ‘good’ way to approach this (that is, an alternative to military tribunals): pass a bunch of statutes with very vague terms along the lines of “material support” that could be used to get convictions in federal court.  My estimation at the time was that the idea then was simply a strategy for persuading people to drop military tribunals and get them into federal court – whereupon, undertaking the customary human rights organization game of bait-and-switch, argue that the very things you had argued for earlier, such as relaxed statutes like ‘material support’ were now self-evidently huge problems. 
• Fourth, the new administration has to come up with some way of getting rid of people who have been convicted but served their time – how to deport them, in other words.
• Fifth, some small number of people – not necessarily precisely the “high value detainees” (remember that term?) – but some small group of detainees – will be detained without trial.  Question is on what basis in an environment that claims to act under the “charge them or let them go.”  
• One is simply to say, well, it’s down to less than twenty, so that’s pretty darn good!  
• Another rationale on which to hold people, not inconsistent with the earlier one, is to say, well, we are in this situation because the Bush administration tortured people, messed up the evidence, didn’t collect it properly on the battlefield, etc. – but we have to hold them because of the security risk.  But don’t blame us – blame Bush.  
• The question is whether, once the detainees lawyers finish filing petitions, the federal courts – i.e., Anthony Kennedy – will go along.  My guess is that now that it is a Democratic administration, he will say yes, especially once a Democratic Congress puts its stamp of approval and the Obama administration can treat its problem as solved via the Kennedy-deus-ex-machina and Justice Kennedy can treat his place in history as assured.
• Sixth, the human rights organizations will have to decide how hard to fight the Obama administration on the remaining detainees in uncharged detention.  My estimation is that they will make pro forma arguments, but they don’t want to fight too hard, for two reasons: 
• One is that they all wish the new administration good health and long life, i.e., two terms, and don’t really want to make an issue of this, especially once the courts have blessed an arrangement blessed by the two political branches (now where have I heard before the argument that the courts should stay out of a national security matter in which the the congress and the executive jointly provided a solution? Oh well).  
• But the second reason is more momentous, which is that the civil liberties and human rights organizations will want most of all to avoid the formalization of a regime of preventive detention that is explicitly blessed by a Democratic congress and executive, under civilian law and outside of the military framework and which is likely to blessed by Justice Kennedy. They will therefore prefer to allow an ad hoc detention system of a few legacy detainees rather than see the formalization of a system of preventive detention.
• Seventh, ad hoc preventive detention will remain constitutional … until the next Republican administration.

But I do admit the following surprised me.  David Cole is quoted in the Glaberson article as follows:

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

I understand that to mean that David is not a purist – that is, that one should not be a purist – and that there are some circumstances in which a democratic society can preventively detain someone.  If so, I keep thinking I must be missing something that must be in here.  Have I misunderstood something in here?  Or here?  I admit, that’s possible – I haven’t exhaustively combed through all this stuff, just flipped back through the books I have read and that are on my shelf, and I haven’t read the latest book.  Has this always been David Cole’s position?  Maybe so.  And anyway, given my earlier stated concerns about Glaberson’s reporting, there is a non-negligible possibility that the quote takes this out of context.  Huh.  (Update, November 17:  In response to a couple of emails, let me note that it won’t do to say that the positions in these books admit of the possibility of preventive detention in, for example, actual warfare: of course they do, but the point of these books, plainly, is to say that for one reason or another, that category does not apply to the folks at Guantanamo, at least not in the way that the Bush administration has done: that’s why these books were written, after all, and that’s what’s valuable about them, even if I disagree with many of the arguments.) 

Just to make clear Ben’s position, which I share, I am going to add a lengthy quote from the opening of his Policy Review essay on this subject, with which I entirely agree and suspect that many people, now that it will be the Obama administration and a Democratic Congress, will suddenly come to agree:

THE TERRORIST MASTERMIND had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they managed instead to locate and detain his wife and children, who were living in a remote area of Afghanistan. For several days, they interrogated his wife at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: “We then informed [her] that the plane was there to take her three sons to Saudi Arabia unless she told us where her husband was and his aliases. If she did not do this then she would have two minutes to say goodbye to her sons. . . . We left her for ten minutes or so with paper and pencil to write down the information we required.” Having threatened, in essence, to kill her sons — for nobody doubted what the Saudis would do to them — the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening.

What followed was a protracted habeas corpus action in the U.S. District Court for the District of Columbia. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops who detained him had shouted to the commanding officer to call his men off “unless you want to take back a corpse.”) Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The Bush administration, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case and the Supreme Court — for now, at least — has not intervened.

Should the courts hear it, notwithstanding an act of Congress that explicitly precludes review? If so, what should they hold? Is such a tactic — garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime — ever legitimate? And who, in a society committed both to law and to victory in a global struggle against terrorism, is to be the judge?

The answers to these questions may seem obvious to many readers. Yet in the years since September 11, 2001, something of a gulf has opened between the views of elites — mostly but far from exclusively liberals — and majority opinion on these questions. That gulf was only accentuated by the Supreme Court’sHamdan opinion, the resulting Military Commissions Act, and President Bush’s disclosure of the CIA’s secret prisons for high-value detainees. Public opinion has tended to regard these issues pragmatically — tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context. While public opinion data is nuanced, the Bush administration’s supposed menace to civil liberties and human rights has not had traction as an electoral issue; to the contrary, its opponents in Congress have feared electoral retribution for hampering the fight.  For prevailing opinion in the academy, the press, and the human rights world, however, the standards of international humanitarian law represent moral absolutes, the administration’s flexible approach to them an affront to the rule of law, and the courts the principal line of defense against excessive executive power and its abuse. After all, there are certain things that civilized governments just don’t do. And in functioning democracies, victims of such misconduct, no matter how odious these victims may be, have access to the courts for redress — the threat of tyrannical government being ultimately greater than whatever threat even the worst criminals or terrorists may pose. In the end, the rules that limit governmental power have to be tough and the courts have to be available to make them real.

But let me now confess that I have adjusted somewhat the facts of my opening anecdote, which is, indeed, the true story of the capture of an uncommonly evil and dangerous man: The plane was really a train; the country was not Afghanistan but Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was not an al Qaeda figure but perhaps the greatest mass murderer of all time: Rudolf Höss, the commandant of Auschwitz. And the resulting habeas litigation, de rigueur today, was beyond anyone’s wildest imagination then. The stark reality is that absent an interrogation tactic that “shocks the conscience,” Höss — like his colleague Josef Mengele — might well have escaped justice, Nuremberg lost its star witness, and history denied his crucial accounts of the factory where 1.1 million people died.

If the tactic — and the absence of any judicial review of its use — does not suddenly seem more defensible, stop reading now. You have proven yourself both a principled opponent of abusive interrogation and truly committed to judicial oversight of legally dicey wartime practices. This essay is not for you. While I admire the certainty of your nonconsequentialism and your faith in judges, I share neither and can only thank God that neither did the British soldiers who captured Rudolf Höss.

This essay, rather, is for those who live in that gulf between the centers of gravity of elite and mass opinion — those not content to give the president a free hand in a messy, unending quasi-war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get — and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable to the charge of having forsaken American values and to the charge of having done so with insufficient boldness to enable the executive branch to win. In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the war on terror now in the context of stable, democratic, constitutional government, I venture the guess that it is within this space — not with a dogmatic commitment to executive power, nor with an undying faith in the wisdom of judges — that it will do so.

My purpose here is to sketch a vision of judicial review in the war on terror for those who live in this space. The theory, like the conflict itself, is messy and inelegant; it lacks all of the purity of either the administration’s infatuation with presidential power or the civil libertarian love affair with judicial power. It lacks as well completeness, for it is predicated explicitly on the notion that we have not yet built the legal and doctrinal architecture that will govern this area. I do not pretend to know in full those details and mistrust grand claims as to the ultimate design. 

Put simply, I mean to argue that while meaningful, probing judicial review has a more substantial place in this war than the administration allows, it has a far more limited one than many civil libertarians and human-rights advocates imagine. International conflict by its nature resists the application of clear, uniform rules enforced by judges neither steeped in the realities and exigencies of warfare nor well-positioned to evaluate the relative costs and benefits of greater and lesser muscularity in detention policies. The effort to create and apply those rules carries dangers their advocates often fail to appreciate. In any functional system of judicial oversight, therefore, jurisdictional limits must be crystal clear and allow the executive branch adequate flexibility for creative action, which — as the Höss example vividly shows — is not always pretty. In particular, judicial review should be designed for the relatively narrow purpose of holding the executive to clearly articulated legislative rules, not to the often vague standards of international legal instruments that have not been implemented through American law. As such, habeas corpus is the wrong legal mechanism through which to accomplish effective judicial oversight of key detention and interrogation policies and tactics. The better mechanism, I shall argue, is a system of statutorily authorized direct appeals from administrative actions concerning detention and from convictions by military commissions, a system that builds and elaborates on the skeletal one that has already come into being in law and regulation. Concerning interrogation tactics, I shall argue that the proper scope for judicial review of actions overseas is narrow but significant and that the best check against executive abuse is a congressional, not a judicial, one.