Bobby Chesney’s post about military detention asks all the right questions and I agree with the first several steps in his analysis of those questions. I want to record some questions or quibbles about the later steps in his analysis, however. It is true that Hamdi baldly forecloses “indefinite detention for the purpose of interrogation,” but it is possible that the emphasis here should be on “indefinite,” rather than on “interrogation”, especially in the context of the Court’s discussion, in which the central worry seems to have been that detention could go on forever (whatever the grounds of detention). In any event, our point of course is to criticize Hamdi’s procedural framework for detention, although of course we approve of its holding that detention is substantively authorized by the AUMF. We don’t take Hamdi‘s procedural holding as a fixed point; its correctness is what we mean to question.
If Hamdi’s holding (dictum?) barring detention to acquire intelligence is correct, it would have to be because, as Chesney explains lucidly, there is some predictable skew in the government’s decisionmaking, such that it will detain too many people, inflicting too many costs for too little benefit. The benchmark for determining whether such a skew exists is not just the number of false positives and false negatives, but a weighted comparison of their costs and benefits. A false positive – here, detaining someone who has no useful intelligence – might be less costly overall than a false negative – failing to detain someone who does have useful intelligence. The former is of course more costly to the detainee, the latter to society; a rational and well-motivated government would weigh these costs impartially. The crucial questions, then, are the rates of false positives and negatives, the costs of false positives and negatives (which are not necessarily equivalent), the government’s incentives to conduct the calculus accurately, and whether the judges can improve upon the government’s decisionmaking.
I have not yet heard any account suggesting that if the government could detain in order to gather intelligence it would do so to excess, or that the judges could improve upon its decisionmaking, although I am open to thinking that there is such an account. I will say only that false positives are hardly costless to the government in this setting. One of the comments to Chesney’s post (by Geoffrey Corn) mentions several such costs, such as “distracting resources from more precisely focused intelligence gathering, and overwhelming the logistical capability to hold and care for such individuals.” Even if the government only cares about its own costs, not total social costs, it will have an incentive to keep down the number of false positives. Whether the incentive is adequate is difficult to say; by the same token, however, I see no basis for judges to be confident that it is not. Corn mentions that front-line military personnel may have an incentive to over-detain, but by doing so they are imposing costs on their superiors, who will be aware of the perverse incentive and will try to do something about it. If the problem is agency slack within the military – the commanders cannot fully control the line officers — the notion that judges can fix the problem through due process review strikes me as far-fetched.
As this will have to be my final post, I want to thank our commentators and my co-author for their interesting remarks, and thank Roger Alford for hosting this event.