War Zones, Substance, and Procedure in Terrorism Prosecutions

by Bobby Chesney

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…


by Deborah Pearlstein

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…

Try the Detainees

by Glenn Sulmasy

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.

The Forgotten H.R. 6615

by Kevin Jon Heller

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…

Thoughts on Detention

by Benjamin Wittes

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…

Judge Wilkinson and the Ambiguity of the “Conduct that . . . Aims to Harm” Criterion

by Bobby Chesney

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?….

A Brief Aside on Detention: Alien Enemies and the EDA

by Steve Vladeck

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…

What Should a 2009 Detention Statute Look Like?

by Marty Lederman

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….

The Ten Principles of Detention

by Roger Alford

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….

Speaking of Detention

by Deborah Pearlstein

Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go…

Assessing the Threat: One More Meta-Question for Ben and the Group

by Marty Lederman

Before we move on to the specific questions of detention and interrogation, I’m curious about Ben’s, and others’, reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our “very different assessments of the terrorist threat.” I responded that I was skeptical of this — that I assumed there was not much distance between most of us, Ben included, on the nature of the threats (plural explained below), but only on how we think Congress, the courts, the Constitution and international law should respond to such threats.

For what it’s worth, my starting assumption has been that it is important to identify and distinguish two distinct sorts of threats. First, although there is a very interesting and important debate/discussion now underway as to whether and how al Qaeda is gaining or losing strength, I assume that al Qaeda is and will for the foreseeable future remain a chronic but intermittent threat with respect to what I will reluctantly call “familiar” terrorist acts — terrible acts of violence, but roughly within the range of what the West has been confronting for the past two or three decades: incidents such as the African embassy bombings and the London and Madrid bombings, as well as intermittent suicide bombs in subways, malls, etc. Some of those terrorist acts will occur in the U.S., more overseas. Perhaps, on occasion, something more dramatic, akin to the 9/11 attacks…

Congress in the War on al Qaeda

by Glenn Sulmasy

Thanks to Chris for inviting me to participate in this great “roundtable.” It has been wonderful to read the myriad perspective already.  Ben’s book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate…as evidenced within this blog.

The discussion over whether this is a war or not seems to have been answered by Ben earlier today. But I think I would go a bit further…it is an armed conflict although one, as Ben notes, we are not accustomed to fighting. Thus, the problem with labeling the conflict as one or the other paradigm (war or law enforcement) triggers completely separate legal regimes. That is where we have been for the past seven years. The fact is the fight against international terrorism is an “armed conflict” — we have respnded to the attacks of 9/11 with armed force; and clearly the battles raging in Afghanistan (and now in Iraq against AQI) are indicium of war. But we also now use the FBI, the CIA and other law enforcement entities more than we ever have before – even in “combat”…There is a real mix of law and war in this conflict. As I see it, the key point of wisdsom in Ben’s book is that neither legal regime will work if strictly applied. There is a real need to embrace a third way, or a hybrid model. In my view, as many of you know, that is something worthwhile to at the minimum, have a commission chartered to review and seriously study….