Detention in the News

Hard to know what to respond to first given all the news this past week on the Guantanamo/detention front. My own week began with participating in the fascinating and useful meeting President Obama held with some human rights advocates and academics. Since then, I have been tempted to explore the politics of a debate that now find Jack Goldsmith and the Guantanamo lawyers on the same side (in both wrongly caricaturing Obama’s policies as a continuation of Bush). And I still hope to get back to that soon. For now I’d like to pick up on one topic in law on its own terms, the one that seems to me to have generated some of the most troubling post-speech reporting: What did the President have to say about the prospects of a “preventive” detention regime, and what did it mean?

Having made the unfortunate mistake one night of watching cable news coverage of the goings on, I learned that Rachel Maddow and the Center for Constitutional Rights (the NGO managing the representation of the Guantanamo detainees) think Obama’s preparing to launch a Minority Report-like pre-crime division of the FBI. (Striking contrast between Rachel’s railing against the Republican scary music political ad of the dangers of closing Gitmo, followed by her own scary music movie shot depicting an authoritarian sci-fi detention regime. Irony is evidently among cable news’ many victims.) For a reality check, I went back to look at the key part of Obama’s speech.

We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States…. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Some parts of the President’s speech were beautifully clear. (On closing Guantanamo, see, e.g., “There are no neat or easy answers here. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. Our security interests won’t permit it. Our courts won’t allow it. And neither should our conscience.”) Other parts, like this passage on detention, were vague enough to make clear the policy hadn’t yet been fully developed. (“If and when we determine that the United States must hold individuals to keep them from carrying out an act of war….”) I’d say this makes the Maddow-CCR account (and good grief, Glenn Greenwald), at a minimum, premature.

So what we can glean at this stage? For example, was the President just talking about a detention regime for managing some subset of the people currently at Guantanamo, or was he talking about a new “preventive” detention regime for anyone here in the United States or anywhere else in the world going forward? One read is he was talking in this setting about only the former. (“[O]ur goal is to construct a legitimate legal framework for Guantanamo detainees…”) On the other hand, parts of this passage sounded rather more forward looking: “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again.” We’ll have to wait and see. For present purposes, I’ll limit the analysis to detainees at Guantanamo Bay.

Is it clear from the speech who might fit into this category of Guantanamo detainees eligible for continued detention? Not entirely, but we heard some examples. For instance, some were people who have “commanded Taliban troops in battle.” That sounds like a pretty traditional POW to me. And given the ongoing conflict in Afghanistan, the Geneva regime, the AUMF, and the Supreme Court’s decision in Hamdi, seems to me as though there’s adequate existing authority under both U.S. and international law for his continued detention. If the President wants to work with Congress to make sure these people get more and clearer procedural protections than they’re currently entitled to under Geneva (which after all only requires Art. 5 hearings) and Hamdi (which, after all, left the procedural details pretty vague), then I’m not sure I have any categorical objections (though the devil will be in the details). In all events, the CCR view that somehow this kind of detention is not already authorized by law, and is in some way historically novel – that view is, I believe, wrong. And if litigated, I believe it will lose.

The other examples are more complicated. What about the guy who “received extensive explosives training at al Qaeda training camps”? Receiving training at a terrorist camp is now a crime (with extraterritorial scope) under the U.S. federal criminal code. But it hasn’t always been (18 U.S.C. s2339D was enacted in 2004). And it may not have been on the books when this guy received his training. So it might not be possible to prosecute him today for that now-criminal offense without running into a big ex post facto/legality problem. It’s conceivable the government could come up with a more creative criminal charge, and I’ll trust that smart prosecutors are combing the criminal code for what was on the books at the time the training was received. But if that fails, any authority for his detention it will have to be found under existing U.S. (AUMF) and international law. Why? Because it’s not at all clear one could amend the AUMF now or enact new affirmative detention authority 7+ years after this guy’s initial arrest and, just by calling the authority “preventive” detention, avoid the ex post facto problem one would encounter if one added the same authority as a criminal offense. Indeed, the more punitive the circumstances of detention appear (and hard to imagine anything more punitive than Supermax), the harder it will be for the government to survive an ex post facto challenge.

So what authority currently exists for this guy? Let’s assume he also falls in to the same group identified by the President’s final example – those who have “expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.” Well, that’s the hot topic being litigated in the district courts as we speak. So far, three federal district court judges (see, e.g., Judge Bates) have sided at least in substantial part with Obama’s iteration of what the AUMF means: “[U]nder the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.” While Judge Bates rejected the notion that merely providing “support” for Al Qaeda was enough to justify detention, all three judges agree: “The AUMF and the law of war do authorize the government to detain those who are part of the Taliban or al Qaida forces. Because the AUMF permits the President ‘to use all necessary and appropriate force’ against ‘organizations’ involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi and subsequent cases, such force includes the power to detain.”

Based on this, my guess is the guy who received weapons training from Al Qaeda, and the guy who asserts his allegiance to Al Qaeda, are detainable under the current AUMF. The guy who “otherwise made it clear” he wants to kill Americans? Impossible from that characterization of the example to tell.

Is the Obama Administration’s position in the courts on the scope of the AUMF reasonable? Yes. Is it right? Here’s my thinking. On the Administration’s side: The Supreme Court already held (in Hamdi) that the AUMF authorizes some kind of detention – at a minimum, the Court held, that detention traditionally authorized under the law of international armed conflict. The relevant international law here – i.e. the law of non-international armed conflict – does not of itself authorize detention, but neither does it prohibit it. It leaves the question to domestic law. So do we think, as a matter of statutory interpretation, that Congress intended to authorize the President to detain members of Al Qaeda when it passed the AUMF? It is entirely plausible that it did.

Would such a detention statute – assuming that’s what the AUMF is – be constitutional? Here is where the Administration runs into trouble. It is one thing for the Court to conclude that the AUMF could be read to authorize Hamdi’s detention, when the statute is specifically informed by a well developed area of international law (the law of international armed conflict). It is another thing – a problem of due process and legality – for a court to hold that the AUMF detention authority extends into a realm undefined by text, and not clearly informed (or only informed by analogy) by another body of relevant law. Put differently, applying the AUMF to Al Qaeda members in a non-international conflict would allow long-term detention without a detailed (or adequate) set of protections, and without a prescribed end condition (in contrast to international armed conflict detainees, who must be released at the effective conclusion of a conflict between two states). While the Detainee Treatment Act, etc. arguably addressed to a limited extent the AUMF gap in procedural protections, it did not specify the conditions that would necessitate release. It is of constitutional significance that civil commitment laws, for example, make explicit what achievable conditions exist for the end of detention. (See, e.g., Kansas v. Hendricks, noting that under the Kansas commitment statute, if at any time the confined person is adjudged “safe to be at large,” he is statutorily entitled to immediate release.) Our allies’ preventive detention laws provide analogously definite end-points – most, simply an arbitrary (and brief) length of time.

Until the Administration can identify – and Congress enacts – a provision detailing the circumstances under which any avowed Al Qaeda member would be released, it is difficult to see the current AUMF detention regime surviving constitutional scrutiny. Amending the AUMF now to specify these conditions wouldn’t necessarily run into ex post facto problems – defining conditions of release need not constitute adding pains and penalties not previously there. But it will require a leap of political leadership broader than any (of the many) already attempted. And it might start to make those post-Gitmo foreign rehabilitation programs (which themselves need some work) look pretty good.