U.S. Detention Needs Circa 2012

Cross-posted at Balkinization

Bobby Chesney writes back with a thoughtful post responding to my question about whether the United States has forward-going detention needs in its counterterrorism operations that are currently unmet by the 2001 statute known as the AUMF. The question arises in light of Congress’ current debate over whether to pass (as the House already has) new legislation essentially extending and broadening existing use of force authority it passed in 2001.

Before I engage Bobby’s suggestions, a quick note principally to our readers not as steeped in domestic U.S. law who have written to ask what this debate is all about. So in grossly abbreviated form… As a matter of domestic U.S. law, the executive must have some affirmative font of authority for carrying out war-making and/or counterterrorism operations, either under the Constitution or under a statute passed by Congress. The Gitmo detainees and others who challenged the legality of their detention starting in 2002 argued, among other things, that the executive lacked such authority. In 2004, the U.S. Supreme Court held in a splintered plurality opinion that (a) the AUMF (which I quote in an earlier post) did give the executive the authority to detain, at a minimum, “an individual who…was ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there”; and that (b) the Court’s interpretation of the scope of the AUMF was informed by “longstanding law of war principles.” Litigation in lower federal courts since then has reached some stasis regarding who else beyond the individuals described in Hamdi could be detained, and (although less clearly) how IHL informs this conclusion. Broadly speaking, the courts have read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

Ok, that said, Bobby suggests there are two categories of individual the United States may need/want to detain in the coming years who he thinks may not be covered by the existing AUMF: (1) Al Qaeda-member detainees like KSM who we’re currently holding at Gitmo and who we may want to continue to hold after the cessation of active hostilities in Afghanistan (when IHL would presumably require Taliban members to be repatriated); and (2) a bomb-making expert (or the like) who’s a member of Al Qaeda in the Arabian Peninsula (AQAP), a group that Bobby (and John Dehn in a helpful comment to an earlier post) I think probably rightly understand as “ideologically but only arguably operationally aligned with al Qaeda” (John’s formulation). (FWIW, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.)

These are useful examples, but I’d say still don’t really make the case for new and improved use-of-force authorization. The first example is the easier one. KSM is the poster child for the terrorist who could and should (long ago) have been prosecuted in federal criminal court. That he hasn’t been is a moral and political (and legal) embarrassment brought about in substantial part because various members of Congress keep proposing laws like the one that passed along with the House bill yesterday, barring the President from prosecuting any foreign terrorist suspect, wherever he may be detained, in any criminal court. As I think I can safely say based on past discussions (not to mention recent posts), neither Bobby Chesney, nor Ben Wittes, nor Jack Goldsmith, nor Marty Lederman, nor I (all oft-times on opposing sides of these issues) think such a ban is a good idea. I also think it safe to say KSM will, at a minimum, face prosecution before military commission in any case. As for the non-KSM Al Qaeda member at Gitmo, particularly given the habeas cases already decided, I guess I’d say it’s pretty clear they’re considered ‘grandfathered in,’ as it were, under the existing AUMF. Hope of course springs eternal we might eventually just prosecute him, too.

What, then, of AQAP, which seems to be something of a post-9/11, quasi-independent franchise of bin Laden’s Al Qaeda (looking to profit, as it were, from the notoriety of the Al Qaeda brand name)? Let’s imagine for a minute that it is in fact this group and its ilk that Congress has in mind in thinking the President needs more detention authority than he has. If AQAP really didn’t crystallize til 2009 or thereabouts, and if its relationship to Al Qaeda per se is less than clear, maybe (maybe) the existing AUMF doesn’t extend. So if that’s who we’re after why tie such groups to the language of the 2001 AUMF at all? Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. I’m going to use exaggerated language here, but it’s in service of trying to clarify the point: “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

Here, Suzanne Spaulding, former general counsel for the Senate Select Committee on Intelligence, former executive director of the National Commission on Terrorism, makes the case better than I.

Osama Bin Laden sold the notion of a “Global Jihad” as a way of bringing disparate terrorist groups, who had been locally or regionally focused, into his fight with the West. He convinced them that they couldn’t change their local regimes, the “near enemy,” because those regimes were backed by the “far enemy,” the United States and other Western nations. The only way they could succeed with their local objectives, he argued, was to join his global fight against the far enemy…. [T]he events of 9/11 provoked the United States into declaring its own Global War, which Bin Laden used to support his claim that Muslims were called to join in the Global Jihad. No matter how many times US political leaders asserted that they were not engaged in a War on Islam, Bin Laden and his followers pointed to America’s Global War to inspire new recruits. The reason the Arab Spring was such a devastating blow to Bin Laden’s strategy was that the near enemy was overthrown by the efforts of the local population, not as a result of the Global Jihad.… With Bin Laden’s death, the most effective advocate for the globalization of terrorism is gone. Tensions have long existed within al Qaeda between those who believed in the imperative of going after the far enemy and those who thought poking a stick at the West was folly and the fight should be taken more directly to the near enemy. Those fissures should now grow, further complicating the struggle for succession….If we can undermine the appeal of a global movement, that would have significant long-term benefits.

If one buys this case, even a bit, then it strikes me important reason for hesitating to start the post-bin Laden era by declaring war all over again.