The New York Times ran a front page story from its lead Guantanamo reporter yesterday.   (William Glaberson and Margot Williams, research assistance Andrei Scheinkman, “Next President Will Face Test on Detainees: Some at Guantanamo Called Serious Risks,” NYT, Monday, November 3, 2008 (behind reg. user wall), A1; plus a referenced data base of detainees used to analyze the detainee records.)

Now, where was it that I first heard of what Glaberson et al. have done here - created an elaborate data base of all the detainees and their statements in front of the military commissions and various hearings, and read thousands of pages of testimony, much of it from the detainees themselves - where was it, again?  Oh, I remember, Benjamin Wittes’s book from not so many months ago, Law and the Long War.  As discussed here at Opinio Juris in a roundtable.  But is there any reference to Wittes’s pathbreaking work in this article or even in the data base?  Not so far as I can tell; if there is, my humble apologies to all concerned (no fair adding it unacknowledged afterwards, of course).

On behalf of all of us at Opinio Juris, I want to thank Benjamin Wittes  for joining us this week for a symposium his book Law and the Long War.  We also want to thank  Bobby Chesney,  Geoff Corn, Marty Lederman, Glenn Sulmasy, and Steve Vladeck for their guest-blogging with us. Their contributions were invaluable.

We also want to thank everyone else from the Opinio Juris community who commented or followed the discussion.

We hope you found it interesting and useful.

Later this month, we will have our next book symposium (our first from the Oxford University Press/ Opinio Juris Book Club). Dean Tom Farer of the Graduate School of International Studies of the University of Denver (and other guests) will be joining us to discuss his book Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy.

It should be a good follow-up to the symposium we have just completed. More details soon.

Well, we never got as far as interrogation or surveillance, but that’s okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to the OJ team for hosting it.

One big-picture thought in closing: We’re actually approaching some kind of synthesis here, or at least veering in the general direction of one. On the book’s basic premises, the argument is between those (like me) who believe that that congressional design of the system is essential and that judicial design dangerous but who also believe that extensive judicial involvement in the system is critical to its success and those who believe that judicial involvement is essential and that judicial design is not all that scary, but who also welcome congressional design involvement. That’s not an insurmountable divide, frankly. On detention, the argument is between those (like me) who believe that the existing detention powers of the government should be supplemented by one tailored to the current problems and those who believe that law of war and the criminal law adequately provide for and regulate detentions in the current conflict. That’s also not an insurmountable barrier, since I agree that the laws of war are, in a pinch, serviceable and Marty, Deborah, and Steve do not seem per se against any supplmental authority. Had we gotten as far as interrogation, I suspect we might have said something similar there, and recent congressional evidence of an emerging consensus on surveillance is, well, pretty striking…

I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion.  Before sigining off, however, I want to offer a few predictions and related observations about the road ahead.

It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at least insofar as they are captured outside of Iraq and Afghanistan (I predict that no matter who wins the next election, we are not going to abandon or even substantially alter our detention practices in either of those theaters). 

Assuming that this change is not accompanied by adoption of a hybrid detention framework along the lines Ben has proposed, this will result in increased pressure on DOJ to identify grounds for prosecution (I predict that no matter who wins the next election, there will still be substantial interest in preventive incapacitation rather than just surveillance of terrorism suspects (though you should listen to this story by Ari Shapiro on NPR Morning Edition for the view that FBI may be leaning in the latter direction these days as it grows into its intelligence-gathering responsibilities)). 

We may then go a substantial period without any further attacks in the US.  In that case, I predict that we will see a growing trend of criticism attacking the substantive scope of federal criminal law relating to terrorism, particularly as it relates to conspiracy and material support prosecutions, and in general a greater backlash against the prevention-oriented framework of current counterterrorism law. 

Sooner or later, however, we will again suffer a strategically-significant terrorist attack in the US (or a series of smaller attacks, akin to the Beltway Sniper, that collectively have a strategic impact).  At that point, we will experience tremendous pressure either to revert to our post-9/11 practices or perhaps even undertake more draconian measures.  When that moment comes, I hope that we heed Steve’s warning not lose sight of our past problems and abuses.  If we can do that, though, I believe the result will be to draw us toward just the sort of proposals that Ben has set forth in Law and the Long War.  I am predicting, in short, that the conversation we’ve had this week will be relevant for a very long time to come.

I must confess that I’ve been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben’s point in his most recent post — that detention should be based upon “dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force” seems reasonable on the surface, but assumes away the problem that cases like Parhat illustrate, i.e., the demonstration of “some significant relationship.” Is it true that anyone with such a relationship is presumptively dangerous, and thereby detainable under Ben’s framework? Or is there a second showing — first that there is a relationship, and second that within the contours of that relationship, the particular detainee is particularly dangerous? If Ben means the second, then I’m far less troubled (although not completely satisfied, for some of the reasons articulated by Deborah and Marty). But if Ben means the first, then we’re right back where we started, no?

We’re supposed to start winding down this conversation, so rather than dwell on this point, I want to briefly segue to a larger question that has plagued me from the beginning of this debate: are we to judge proposals like those in Ben’s book in a vacuum? Or, in contrast, should we see these proposals through the lens of the many egregious missteps the Bush Administration has taken in its conduct of the fight against terrorism over the past seven years?

A few final thoughts on detention and Al-Marwallah before we move on to interrogation–a subject on which I’m certain my arguments will provoke no disagreement.

First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification. I believe that someone like Al-Marwallah is detainable on the basis of the laws of war (as, with a little more hand-wringing than I would expend on the man, does Marty). In other words, we agree that he is very likely subject to lawful extra-criminal detention of some sort for some very long period of time. I do, however, also thing that if we are totally honest about why we want to detain people like Al-Marwallah, we have to acknowledge that our reasons are not quite the same as they are in conventional law of war detentions. In these more conventional detentions, we detain because the subject is an obvious (by dint of his uniform) arm of a state with whom we have a political difference unbridgeable except by the use of force. We consider the detainee an honorable figure to whom no opprobrium attaches and with whom we have no individual battle. And we offer him no–or almost no–process, because we assume there to be no doubt as to his identity, affiliation, or status. Moreover, we don’t sweat much over his liberty because we know he’ll be released at the termination of hostilities…

Well, Ben, much as I look forward to dining with you to discuss these issues further, I won’t take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces under the direction of the Taliban. Such detention would, as in Hamdi, be for the purpose of incapacitating him from returning to the field of battle under our enemy’s command in Afghanistan. If and when the Taliban gives up the fight, such detention would end.

If that’s all you meant to say about al-Marwalah, then I apologize for overreading that portion of your book. I had assumed, however, that al-Marwalah was your lead example of the need to authorize detention on “premises [that] differ fundamentally from those of wartime detentions,” namely, incarcerations “designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” Why did I think this? Because you write that “the reason to detain men like Al-Marwalah . . . [is] that trained ‘Arab fighers’ who ‘don’t know’ if they’re Al Qaeda members pose a prospective menace to American lives.” (my itals)…

A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in effect at that time may not (emphasize may) have had the requisite extraterritorial scope. Any such lacuna in the substantive scope of the criminal law has since been corrected. Mr. Al-Marwallah, were he arrested today and gave uncoerced statements about his receipt of terrorist training, would be precisely prosecutable under at least two federal criminal laws I can think of, with few problems beyond. I believe we can handle the Mr. Al-Marwallah’s of the world today. No further legislation necessary. (As for Mr. Al-Marwallah himself, I’ll leave to Marty to detail the theory under AUMF, etc. as to what should happen now.)…

Let me start by saying that I don’t think I’ve substantially narrowed my detention criteria between the book and this discussion–though I am potentially amenable to doing so. The book is written for a general-interest audience and, consequently, at a higher-level of altitude than this discussion is taking place. Precisely to preserve the ability to have this discussion sort of more granular discussion, I wrote that the contours of the detainable class “will require careful legislative definition” (p. 163) and contented myself in the book with the most general principles for defining the class. I have, to be sure, been more specific in my discussion here as to some of the legislative criteria I might apply (emphasis on the word “might”), but I think they are well within the ambit of the principles I describe in the book.

Marty does not quote the sentence I actually intended as the centerpiece: “The core of the authority should more or less track the domestic power to lock up the insane: A person should be subject to administrative detention if he is both a member or associate of opposing forces and dangerous for that reason.” In this discussion, I have added a third prong to this two-pronged test–the impracticability of criminal trial–and I have tried to give more texture (informed by Judge Wilkinson’s opinion, Matt Waxman’s paper, and numerous conversations with Marty) to the two pre-existing prongs. But I see this more in the realm of refinement and addition of greater detail than as a broad change. That said, if it makes Marty more comfortable, I’m delighted…

Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly–as I propose to do–isn’t your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby’s excellent work on this subject, that the substantive answer to her question is yes. Anyone (or almost anyone) detainable under the scheme as I envision it would, in an ideal world, be prosecutable as a criminal, for he has committed a crime. But we don’t live in an ideal world. In our actual world, there are likely to be prohibitive practical barriers to that prosecution in some cases; these are the problems that a reasonable detention scheme can constitutionally help alleviate. The debate turns heavily on how large and dangerous one believes that set of cases to be.

On the substantive side, there are likely people at Guantanamo (taking all government allegations as true for the purposes of argument) who committed no crime as the law stood in 2001. Since then, however, the laws have changed and almost any meaningful affiliation with, material support of, or training with Al Qaeda would now generate criminal liability. Bobby has argued powerfully that the problem is not in the scope of the detention authority the criminal law currently contemplates…

I’m tentatively encouraged by Ben’s new articulated test for detainability, which is not everything I’d hope for (especially if the “impracticability of criminal trial” prong is read broadly), but begins to bridge the gap.

Ben’s proposal in his book, however, is much more troubling.

My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the AUMF — the maximum authority that the Constitution allows, per Judge Wilkinson — must be viewed as analogous to the traditional wartime detention authority, as translated to the new context of this noninternational conflict against a terrorist organization, and informed by the laws of war.

The detention authority Ben would have Congress authorize, by contrast, is one whose “premises differ fundamentally from those of wartime detentions” (p.162). In what way? Well, a “responsible” Congress “would treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” According to Ben, this acknowledgement is “a psychological Rubicon we simply need to cross.”

Sorry, but I’m staying on this (constitutional) side of that line…

I’d like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan and Iraq, at least not when US forces are the ones involved in the capture.  I’m not sure if anyone involved in this week’s debate thinks otherwise–Ben, Deborah, and others have all referred to their being an appropriate place for the traditional approach to military detention, and I assume that this is what they have in mind.

That said, the question becomes whether to revert to a traditional prosecute-or-surveil approach or develop a hybrid framework, when dealing with persons captured outside the conventional combat setting (e.g., Boumediene and other GTMO detainees who were arrested in Bosnia).  It seems to be common ground that it is good policy, at least, to use the domestic criminal justice system if at all possible, and that the heart of the debate concerns whether there truly is, as Ben contends, a set of cases where that system won’t result in detention despite a manifest need to incapacitate a dangerous person.

That question has precipitated a recent outpouring of discussion regarding the substantive and procedural scope of the domestic prosecution system…

There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take, Roger to the Israelis’, and Bobby to Gabor Rona’s), or who should we be able to be able to detain in the interest of effective counterterrorism (Ben offers a concrete suggestion in his last post, and I’ve written elsewhere on this as well).

There are a few areas in which (I think we may all agree) the current law of “who” seems to match up more or less with current needs. If someone’s actually committed or attempted to commit an act of terrorism that can be demonstrated in court, the criminal law gives us plenty of authority to hold this guy (and try him). Likewise, if someone shoots at American soldiers on behalf of a foreign state (and this action is part of a more general conflict between their soldiers and ours), the Geneva Convention regime fits him fairly well, and detention is understandably authorized either under an act of Congress (like the AUMF) and/or the President’s Article II powers as informed/limited by the international laws of war…

There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of “preventative detention” almost immediately upon taking office on January 20, 2009.

Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees, all of them. Because this is a unique armed conflict, traditional methods of war detention are really not available - particularly as a matter of policy. We simply can not close Gitmo, and bring all of the associated problems and issues of detention into the United States. To me, preventative detention has been the real problem in Gitmo. We can not hold people indefinitely without trying them in this war. Certainly, the military commission process, in the past, has never been used for this purpose. Instead, the political branches should be working long and hard at constructing, as Ben suggests, a new court system that might better capture the nature of the threat - a mix of the law enforcement model and warfare tribuals. In legislatively creating the new court, there is the opportunity to have a new court system capture all sides of the debate. It could be the answer to achieving a real balance between the desire to promote the rule of law while still ensuring national security is paramount. The key to me, however, is that such a system must be adjudicatory in nature and function.

I believe we will be discussing the possibility of a new court over the next day or so, but it seems if properly constructed, such an Article III, civilian run, new system might be the answer to issues of habeas stemming from the Boumediene case, preventative detention, coercive interrogation, trials etc.

I have no idea what you people are talking about.  Congress has no intention of standing on the sidelines while the Supreme Court micromanages Guantanamo Bay, as Rep. Lewis Gohmert (R-Tex)’s new H.R. 6615 proves beyond even the smallest shadow of a doubt.  Here is the title:

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

And here are the operative provisions, Section 3…

There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone’s indulgence to bunch posts and arguments together. If I’m skipping over important points in doing so, just call me on it and I’ll try to circle back.

Let me start with the broad question of what a new detention regime would look like and how, specifically, it would differ from the current system of anemic CSRT review followed by habeas litigation. In my view, the basic problem with the current regime is two-fold: first, as we’ve been discussing, the standards, protections, and procedures, are all underdeveloped and could develop badly in any of a number of ways; second and less discussed, because the CSRTs themselves are such a weak instrument, the record they generate and that the government then has to defend before a habeas court–or the DTA-review court–is a total mess. My essential argument is that both the detainees’ rights and the government’s interests would be served better by a system in which a serious process up front authorized the detention that followed. The innocent detainee would get an earlier opportunity to clear up the misunderstandings that led to his arrest. And the government, when it prevailed, would prevail with a record worthy of respect and deference from the reviewing courts. Habeas would then look more like habeas review of state convictions than like the Gitmo cases–in which the habeas courts properly understand themselves as the front-line of real review. Such a system would also require the government to think hard at the outset of each detention about how it would justify that detention in court. And it would force the courts to say early on that a detention is justified so that the executive is not out on a limb on its own for years…

Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government’s capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a detention system no matter how flexible its procedural features may be. Accordingly, I think that Marty is quite right when he argues here and here that this is a crucial issue.

In both posts, Marty draws attention to Judge Wilkinson’s opinion (concurring in part and dissenting in part) in al-Marri, which offers a set of detention criteria that “conform to the evolving principles of the law of war” and that “should avoid . . . constituitonal concerns” even as applied to “detention of an enemy combatant apprehended on American soil.” (slip op. at 175-76). Marty predicts that these criteria, or something like them, may become “the standard that courts will employ in the habeas cases and elsewhere.” What are these criteria?….

I suspect that, thanks to Roger’s framing and Marty’s and Deborah’s thoughtful opening salvos, we’re not too far from getting to the two big questions with regard to Ben’s proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to go first.

In the interim, I wanted to just flag a pair of curious historical footnotes, both of which tend to get overlooked in these conversations (perhaps for good reasons). We actually have two pretty interesting exemplars of preventive detention legislation, and I wonder if both provide useful lenses through which to view Ben’s proposal…

A brief attempt to frame the questions for Ben and others on the issue of preventive detention:

I think Deborah is absolutely right to insist upon distinguishing the GTMO problem from everything else. Most of the GTMO detainees have been incarcerated for more than six years. Finally, they are receiving a serious opportunity to contest their detentions in the D.C. habeas proceedings, and we should allow those proceedings to run their course before offering any statutory fixes. The GTMO regime was designed primarily for interrogation purposes, rather than for the sort of incapacitation that is the focus of Ben’s book. That explains the fairly indiscriminate collection of prisoners, based on sketchy evidence, and the manner in which the detainees have been treated there. (Imagine how different GTMO, or an equivalent U.S.-based facility, would look if incapacitation were the principal aim — it’d probably resemble the U.S.’s historical POW facilities, housing (primarily) detainees about whom we have more certainty of dangerousness, and in humane conditions.) If Ben’s book and the Parhat example are any indication, in many of the GTMO cases the government probably will not be able to demonstrate that the detainees are among those whose detention Congress has authorized — particularly if the habeas courts begin to use a detention standard similar to that articulated by Judge Wilkonson last week in al-Marri. And, as I argued a few days after Boumediene was decided, the habeas proceedings will provide almost all of the procedural fixes that Ben proposes.

Accordingly, any statute to be considered in 2009 (and Ben agrees that Congress and the new President should wait until then) should be focused not so much on the GTMO detainees, but instead on (i) the thousands of detainees we are holding elsewhere, such as at Bagram; and (ii) future detainees….

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law….