Al-Marwallah and Standards for Detention

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.

Incidentally, I might be amenable to what I think is a far more significant change–the addition of some sort of criminal predicate to the test, some kind of requirement that the government demonstrate by a preponderance of the evidence that the detainee’s conduct violated some criminal law. Conversely, I might also be persuadable that my conduct-based second prong is too strict and that a showing a future dangerousness based solely on statements (“I will kill as many Americans as I can the moment I get the change,” say) ought in combination with a showing of Al Qaeda affiliation to be adequate for detention.

But let me talk for a moment about Mr. Al-Marwallah, whose case I read under this regime very differently from the way Marty reads it. Al-Marwallah, were he detained today based on post-2004 conduct, could certainly be prosecuted for crimes (assuming the evidence were usable); taking training from Al Qaeda is now a crime, after all. Back in 2001, however, his conduct may not have been criminal. Yet he acknowledges taking sniper training at an Al Qaeda camp; he acknowledges being on the “back lines” of a fight in which we were on the other side, and he acknowledges being part of a military retreat with the enemy. Moreover, when asked whether he is a member of Al Qaeda, he says that he doesn’t know but he does “know I am an Arab fighter.” I would read such statements as an acknowledgement that he operated on behalf of Al Qaeda and the Taliban, in taking training from one organization and in being in some sense part of the other’s military formation and retreat–all conduct dangerous to the security of the United States. The only hard question to my mind about such a person is the assessment of his future dangerousness–but that is fact-intensive inquiry about the individual. I cannot imagine that as a matter of constitutional law, the United States is disabled from detaining people who actively train with the enemy and participate in its military activities (its formations and its retreats, in this case).

In fact, I regard Al-Marwallah’s detention under the laws of war as perfectly lawful based on nothing more than his own statements. Consider the hypothetical German in street clothes who acknowledged taking training from the Wermacht, being on the “back lines” in France, and retreating with the German Army before his capture and who cagily said–when asked whether he was a member of that force–“I don’t know. I know I’m a fighter for the Aryan cause.” We would have no doubt of his detainability under the laws of war. I can’t imagine any American court would treat Al-Marwallah differently and I’m willing to bet Marty lunch at a restaurant of the winner’s choice that however many detainees at Gitmo are ultimately deemed in habeas cases not to be enemy combatants, one of them will not be Bashir Nasir Al-Marwallah.

Why then is he evidence of the need for an adminstrative detention regime and not simply evidence that law of war detention is a reasonable approach? He’s not. If all cases were this clear, law of war detention would be perfectly adequate for the war on terrorism. But some detainees aren’t as honest as this guy. Some admit a whole lot less–either because they’re lying or because they’re telling the truth. Some of them are smarter. And some of them blur the lines of the laws of war a whole lot more. In other words, Al-Marwallah is a good example of the need for some non-criminal detention authority. His is not, however, the case that shows why that detention authority should not stem from the laws of war.