Thoughts on Detention

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.

Ideally, this system would not be a military detention at all, but a civilian one. This sense of the ideal, to some degree, pulls me away from both Judge Wilkinson’s excellent opinion in the Al Marri case and the fascinating Israeli supreme court opinion on the unlawful enemy combatant law. To my mind, one of the useful aspects of a new statute would be to begin severing–wholly or partly–war on terror detentions from notions of warfare and soldiering to which they are only relatable by analogy and to begin building a legal basis for these detentions that rests more directly on their peculiar realities.

That said, I think both opinions provide a lot of useful guidance on the definition of the detainable class. On this point, see as well Matthew Waxman’s excellent new paper, which is part of a paper series I am editing on the statutory architecture of counterterrorism. Wilkinson’s criteria, in particular, seem to me an excellent place to begin–though, as Bobby rightly points out, each of them begs questions even while answering them (in particular, I’m not sure if it makes sense to talk about “membership” in Al Qaeda).

For whatever it’s worth, I throw out the following criteria for discussion–not because I am sure they are sound, but they’re the criteria I’m thinking about these days: Under a statutory regime of the type I envision and following the up front procedures outlined above, a court should approve the detention of someone who is (1) operating on behalf of and subject to the direction of any group against which Congress has authorized the use of force, (2) who is engaged in, planning, or intentionally contributing to activity that poses a danger to the United States, and (3) against whom a criminal trial is impracticable at this time.