Criminal Prosecutions and Another Kind of Precedent

by Tommy Crocker

Friday saw the former Attorney General, John Ashcroft, who helped orchestrate placing the supposed “worst of the worst” at Guantanamo, repeat the same two arguments others have made against federal trials of terrorism suspects:  they pose a risk of revealing key intelligence and they increase the risk of another terrorism attack.  The first argument has little traction in light of past experience in prosecuting terror trials, prosecutorial discretion in presenting evidence, and judicial administration of the trial.  The trial of Ahmed Khalfan Ghailani is instructive.  An increased risk of attack has also been repeated as an argument against terrorist detentions in the United States.  How would detaining or prosecuting terrorism suspects in the United States somehow increase the terror threat?  Is there any evidence of this?  Is the alternative to keep the detainees in Guantanamo, with the hope that terrorist groups might ignore the fact that they are detained by the United States?  Such a claim seems wildly implausible.  To the extent that U.S. detention practices are widely known, there seems to be no reason to think that  detentions and prosecutions at Guantanamo versus detentions in Illinois, for example, alter the risk that terrorists would target the U.S.  If the overall desire and capabilities of terrorists to strike U.S. targets would not change merely because of the location of detentions or prosecutions, perhaps it would alter the targeting of a potential attack.  This form of NIMBYism seems based on a highly speculative premise (and a dubious moral claim).  No doubt, fear is easily manipulated to motivate officials into avoiding even a speculative, and at best marginal, increased risk of attack.  But this kind of fear-mongering fails to present a good reason not to prosecute terrorist suspects in U.S. courts. 

If the arguments lack merit, why the orchestrated effort to repeat them? 

Precedent.  If the Obama Administration preserves the war model largely intact, then future administrations will be able to argue the necessity of the model.  The prior Administration argued that war on terrorism was a new kind of war, requiring new, largely unilateral executive, approaches to detention and trials.  Former administration officials have also criticized the move away from authorizing “harsh interrogation” (torture), claiming that it will endanger national security.  Again, presumably to preserve the viability and necessity of such tactics for the future.  If, however, the Obama Administration successfully prosecutes KSM and other alleged war criminals detained at Guantanamo in civilian courts, then the necessity of maintaining a more exclusive military court is undermined.  No doubt, the Attorney General has not rejected the use of Military Commissions.  One can only speculate that a likely reason for prosecuting some detainees in Military Commissions is to take advantage of relaxed rules for admitting evidence.  But maintaining a separate system to allow forum shopping, while perhaps justified by the pragmatics of terrorism-related detention and trial, requires more nuanced justifications than do more general assertions of executive power to conduct war.  Such a pragmatically mixed criminal-war model also invites continued cooperation and intervention by Congress.     

Torture overshadows the debate over choice of law and jurisdiction.  One of the reasons why the Administration may need to forum shop is the manner in which evidence was obtained.  Even then, prior treatment of detainees can be a problem in the Military Commissions, as we see regarding the torture of al-Qahtani.  Even as civilian trials of detainees such as KSM will weaken the claim that an entirely separate war model is necessary for the detention and trial of terrorism suspects, it will work to establish another precedent.  Torture, as in the case of waterboarding KSM 183 times, will have no legal consequences.  Because the Attorney General likely has a strong case independent of any information obtained through torture, the defense will never have an occasion to argue against the admission of evidence in violation of the Fifth Amendment or due process.  No involuntary statements or “shocks the conscience” claims will arise without contested evidence to admit.  Thus, U.S. officials are free to torture and still obtain federal court convictions.  Prohibitions against torture will operate like the Fifth Amendment requirement of Miranda warnings:  ignore them when it is advantageous.  Under the Fifth Amendment, because physical fruits of unwarned statements can be admitted, and because later cures to initially unwarned statements are possible, law enforcement has many incentives to ignore Miranda.  Likewise, where war crimes prosecutions for the perpetrators of torture are politically vexed (to say the least), and constitutional protections do not apply unless the prosecution seeks to introduce tainted evidence, U.S. officials lack any trial-related incentives not to torture for interrogational purposes in the future.  Moreover, absent the prospect of war crimes prosecutions for torture, unlike Fifth Amendment or due process violations, no alternative civil remedies, such as a Bivens action, have been held to be available against the perpetrators.  (See the D.C. Circuit opinion in Rasul here, which denies detainee’s Bivens claims for their mistreatment while in detention because no constitutional rights apply to aliens detained abroad, and because even if they did, qualified immunity would apply). 

My point in discussing these two potential lines of precedent is to recognize something of a catch-22 here and a common remedy.  Although civil trials for Guantanamo detainees will go a long way to disestablishing the claim that “war on terror” detainee trials before Military Commissions are (always) necessary, they do so by continuing a trend that already includes the prosecution of Jose Padilla in which federal courts ignore background interrogational practices.  These practices rely on other kinds of precedents—congressional and executive constraints on interrogations—to remove the practical temptation to torture.  (I’m generally a fan of certain uses of pragmatism).  Thus, like Eric Holder’s decision to try KSM in federal court, the responsibility for disestablishing the necessity to torture lies in the discretionary decisions of the Obama Administration.  Successful criminal prosecutions of detainees, like successful legally-compliant interrogations, will go a long way to establishing practical and policy precedents that should work to constrain the actions of future administrations.   Ironically, the cure for the hangover of executive unilateralism involves more executive branch discretionary decision making.  The political fragility of that discretion, as well as the precedential stakes, explains in part why former Bush Administration officials publicly ply obviously bad arguments.

4 Responses

  1. Thanks for this very interesting post.

  2. KSM and the other defendants admitted their guilt before the Military Commission and were trying to plead guilty when the administration decided to transfer the case to civilian court. Their subsequent conviction will prove as much about the capability of the courts as a victory of the NY Yankees over a Junior Varsity High School baseball team from New Jersey. Victory means nothing, but defeat would prove overwhelming incompetence.

    Nor would a court avoiding extraneous issues somehow demonstrate a limitation. When Bernie Madoff was convicted, the court did not investigate whether the SEC failed to correctly perform its regulatory function. Although that is an interesting question, it must be resolved by the political branches and was not at that point before the court. When Jose Padilla was convicted of crimes committed mostly in Miami between 1996 and 1998 (although one item extended to July 2000) the court did not inquire into his military interrogation between 2002 and 2004 since the answers he gave during interrogation about what he did after Aug 2000 in Afghanistan were irrelevant to and were not introduced into a trial about crimes he committed in previous years half a world away. A competent decision by a court about what is and is not relevant proves nothing, but an improper fishing expedition by a court into matters the judge finds interesting would have demonstrated incompetence.

    It may burst the bubble of those who imagine that the world revolves around lawyers, but KSM was not interrogated to gather evidence in a criminal investigation. When the police misbehave, conviction of a criminal is the only possible motive. However, the purpose of the KSM interrogation was to uncover plans for additional attacks against the US. Those doing the interrogation knew that it would complicate subsequent criminal conviction, but they believed there were more important matters than prosecution. That does not justify illegal activity by the CIA, but makes illegal activity to gather military intelligence a matter for the political branches to review. That is not “precedent”, it is the way the Constitution assigned powers to the branches of government.

  3. In cases of domestic law enforcement, constitutional rules governing the admissibility of evidence through the exclusionary rules of the Fourth and Fifth Amendments are often aimed at deterring illegal police behavior.  What happens during custodial interrogation is generally thought to relate to what happens at trial:  police interrogate for the purposes of obtaining incriminating statements to be used at trial.  Thus, by using the rather blunt exclusionary rule, courts can regulate incommunicado custodial settings.  So unlike Mr. Gilbert’s quick analogy to the SEC, federal courts aim to regulate police behavior.  But this regulation can only reach so far.  In the domestic context, there is little reason for police to torture suspects for informational purposes, and if they did so, they would expose themselves to statutory and Bivens liability.  Federal courts therefore seldom have to face the risk of trying a suspect who was tortured for purposes unrelated to evidence the prosecution seeks to introduce.  But when a court does, as it will in the case of KSM, there will be no remedy.  No doubt, the fact that a suspect was tortured may not be relevant to anything related to a criminal trial.  My point in acknowledging this is not directed to the conduct of a specific trial, but the fact that a civilian trial is no panacea for all rule of law questions.  In the absence of any remedy (exclusionary rule or Bivens, for example) for mistreatment of detainees, civilian courts can vindicate rule of law norms in the conduct of a trial, but not for the treatment of detainees prior to trial.  This is where political precedent matters.
    Under Justice Jackson’s Youngstown framework, when the executive branch acts on its own inherent powers it is in a weaker constitutional position than when it acts pursuant to congressional authority.  Executive officials do not ordinarily make up policy out of thin air, but do so on the basis of past political practice—executive branch precedent.  Hence the Bush Administration relied heavily on President Roosevelt’s decision to try the Nazi saboteurs before Military Commissions (the subject of the Supreme Court case, ex parte Quirin).  Bush Administration officials also argued the very nature of the “new war on terror” required flexible and unilateral executive powers that extended to interrogation, detention, and trial practices.  These officials argued these practices were necessary.  If the Obama Administration proves they are not necessary, then future executive branch practice will have to reckon with the Obama precedents.  Public claims that U.S. courts cannot handle terrorist detainee trials, or that “harsh” interrogation (torture) is necessary will be much more difficult to make.  I think that the future of executive branch precedent motivates public dissemination of (clearly) bad arguments.
    My stint is up here at OJ.  Many thanks for allowing me to take part in the community, and for all the great comments.  For those in the U.S., I hope you have safe holiday travels. 

  4. If the executive branch wants to stop getting so much heat on this issue, they must concede one of two things. If you want to be able to try these detainees in a military tribunal, you are going to have to label them POW. However, of course this means that they would then deserve all the protections the Geneva Convention applies to people of such status. (which most importantly includes: no torture, freedom after end of hostilities)

    However, if “enhanced interrogation” is desired, then the executive branch can still label the detainees as the legal fiction, “enemy combatants”, but then it must concede that they will be tried with full process in federal courts. (this includes: all normal evidence rules, speedy trials, etc)

    The Executive branch needs to decide which of these two interest is most important and choose a path. This will stifle not only international scrutiny, but also intense criticism domestically. And lastly, let’s hope the executive branch has come to its senses and realized that no good information is coming from these detainees, especially not after long durations of torture, and shuts down GITMO for good.

    Also, if Obama wants to get elected again, he might try and actually accomplish one thing he promised the American people

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