I’d like to steer the discussion toward the question of military detention for a moment.
Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e., the mix of rights, procedures, and rules governing the process of determining whether a particular individual satisfies the substantive criteria for military detention).
In any fact-finding system, the applicable procedural safeguards reflect (even if only implicitly) an underlying judgment regarding the appropriate rates of false positives and negatives to be tolerated by that system, as well as a judgment regarding the mix of safeguards likely to produce such rates (all of which, of course, is but another way of stating the tradeoff thesis). From the perspective of the deference thesis, the question that arises is whether courts (or Congress) should second-guess executive determinations of the calibration most appropriate for military detention in the current security environment. Eric and Adrian note that the Supreme Court did precisely that in Hamdi, and they criticize the court for doing so (pp. 256-57). Because the question of procedural safeguards continues to be a point of special significance and sharp dispute, it seems to me that their argument on this point deserves close consideration.
As an initial matter, Eric and Adrian make clear that they concur in the need for a cost-benefit analysis regarding procedural safeguards in this context. They would leave that determination in the hands of the executive, however, in the absence of an explanation as to why judges will conduct a more accurate analysis. “One needs a theory,” they point out, “to explain why the government will weigh the relevant factors with systematic bias, as opposed to random error . . . .” (p. 256).
Hamdi does not offer such a theory (at least not expressly), and this prompts Eric and Adrian to identify and then critique an account that might explain the court’s approach: “One such theory . . . is that the government will just want to detain in perpetuity or convict before a military commission everyone the president alleges is an enemy combatant, so the procedural cost-benefit analysis will be distorted.” (Id.). They describe this account as “mystifying,” however, explaining that “[t]here is no reason to think that the executive would benefit from an excessive detention or conviction rate, or that political constraints would permit the executive to implement such a preference in any event.” (Id.) (emphasis added). Later on the same page they explain that the government has a strong interest in accurately sorting “real enemy combatants from those who are swept up in the fighting by mistake,” and that this interest involves the desire to “incapacitate and deter terrorists and attackers . . . .” (Id.)
If it were the case that the executive interest in detention were limited to the incapacitation of detainees themselves and the deterrence of others, I would find this to be a fairly persuasive line of argument. But it seems to me that the executive interest in detention goes beyond incapacitation and deterrence, encompassing also the powerful interest in gathering intelligence about al Qaeda and the like. In light of that interest, there is at least some reason to believe that the range of persons whom the government would like to detain might exceed the range of persons properly subject to detention pursuant to the traditional armed conflict rule relating to internment for the duration of hostilities. Put another way, the government’s interest in gathering intelligence may lead it to wish to detain (and then interrogate) persons whose detentions might be difficult to justify under conventional understandings of the scope of internment power.
Let’s assume this is so. So what? We need two additional premises before we can adopt this as a viable theory for why the executive might indeed preference an excessive rate of false positives in the detention process.
First, we need to assume that the government will not or cannot invoke intelligence-gathering, standing alone, as a detention predicate. That seems a safe assumption, actually, in light of the express language in Hamdi foreclosing that option (noted by Eric and Adrian at p. 254).
Second, we need an account that explains why heightened toleration for false positives might facilitate the intelligence-gathering interest. Is there such an account? Possibly so. Much of the information that would be most helpful in unwinding al Qaeda and comparable terrorist networks lies in the hands of individuals who might not easily be described as actual members of such groups, let alone individuals who engaged directly in hostile acts. Financiers, document forgers, and other components of the logistical back office for terror networks serve a critical function, and may be positioned to provide tremendously useful information about other parts of the network. Some such individuals can of course be categorized as sufficiently associated with a hostile force so as to justify detention even on a relatively strict reading of traditional detention criteria. Others, however, present a more difficult case. The weaker the procedural safeguards involved in the process of determining detention eligibility, however, the easier it becomes to finesse such distinctions (and the more intel-rich detainees in theory might come into long-term custody).
Certainly this account provides an explanation for the importation of “material support” concepts from domestic criminal law into the military detention context. Whether it also provides a plausible account for questioning executive decisions relating to procedural safeguards is less certain, but worth considering.