On Steve Vladeck’s Post-AUMF Detention

Nothing like spring break (yes, we break right before semester’s end) to do a little catch-up reading – starting this week with Steve Vladeck’s new essay grappling with one of the nation’s most intractable problems: closing Guantanamo. Among the many challenges associated with the prison’s continued existence, Steve highlights its role in preventing serious consideration of repealing the AUMF (the federal statute authorizing the use of military force against Al Qaeda and associated groups). The Gitmo detainees are held under the domestic authority of the AUMF; as long as the government wishes to continue to hold at least some of the Gitmo prisoners (as it does), Congress can’t repeal the law without risking their potential release. Despite the winding down of U.S. operations in Afghanistan, the serious weakening of core Al Qaeda, and the President’s announced desire to move the nation away from a permanent wartime footing – AUMF repeal is essentially impossible as long as we are concerned with maintaining the legality of the Gitmo prisoners’ detention under domestic law.

So how to keep Gitmo from becoming the detention tail that wags the wartime dog? Steve proposes that even without an AUMF, we could continue to hold the approximately 45 Gitmo detainees the executive sees as the intractable core (those the administration has designated unprosecutable but too dangerous to release) under the authority of another federal law: Section 412 of the USA PATRIOT Act of 2001. Section 412 – which Steve notes has not been used once since its enactment in 2001 – requires the Attorney General to take into custody any alien he has reasonable grounds to believe is (for example) a member of a terrorist organization, or endorses or espouses terrorist activity, or “is engaged in any other activity that endangers the national security of the United States.” The alien may be detained for up to a week until the commencement of immigration removal proceedings or criminal prosecution, or for “additional periods of up to six months” if his “removal is unlikely in the reasonably foreseeable future,” and if release “will threaten the national security of the United States or the safety of the community or any person.”

Steve’s diagnosis of the relationship between Guantanamo Bay and the AUMF is spot on in some critical respects. The uniquely problematic nature of the Guantanamo detention program skews the current debate about the need for continuing use-of-force authority, just as surely as it has skewed broader debates about U.S. counterterrorism detention, trial, and interrogation policies for the past dozen years. For a host of reasons, the Gitmo population is singularly unrepresentative of the challenges that would be posed by counterterrorism detention or trial following the arrest of any terrorism suspect today: Gitmo detainees were denied basic Geneva protections (including any initial hearing about who these men actually were); some detainees were transferred there following periods of unlawful (even torturous) detention elsewhere; criminal counterterrorism laws that are today used for prosecution were much narrower extrajudicial scope in 2001; Congress maintains unprecedented restrictions on the transfer of detainees to the United States for any purpose; and so on. Indeed, as Steve recognizes, given all that has gone before, closing Gitmo now involves only bad options; the policy task is to choose which among these bad options is least worst under the circumstances.

Despite the low bar, I have to admit I’m still unconvinced that Section 412 is the least worst way to go. In addition to the constitutional (e.g. due process) and practical (e.g. Congress would still have to act) challenges to the plan Steve himself notes, two effects seem especially concerning. First, Section 412 was designed to authorize the detention of people currently in the United States who the executive wants to deport from the country. That purpose is evident in (among other places) the law’s text; its first two sentences read: “The Attorney General shall take into custody any alien who is certified under paragraph (3)…. [T]he Attorney General shall maintain custody of such an alien until the alien is removed from the United States.” As Steve acknowledges, for the statute to squarely apply to the Gitmo detainees, the executive would have to take individuals currently outside of the country and bring them into it – rather the opposite of what the statute contemplates.

More pressing, an executive who invoked Section 412 to detain the particular population of Gitmo detainees with which Steve is concerned – those 4 dozen or so the executive has concluded should neither be prosecuted nor released – would be doing so under a pretense. Detention is permitted at all under the statute (and dangerousness at issue at all) because the fixed end date of detention the statute contemplates is the detainee’s effective – and sought – deportation. Under the Gitmo circumstances, the executive has no interest in pursuing these detainees’ removal per se; if sending these men back to their home countries was all the executive wanted, it is likely it could achieve that for at least a fraction of them now. What the executive wants is to continue to hold them despite its ability to send some of them to other countries. In other words, it is hard to see how the executive could invoke Section 412 authority in court for detainees it had no intention of removing anytime soon with anything like good faith. The problem here is not just stretched statutory construction, though it surely requires a stretch of the statute in text and purpose. The problem is also putting the executive in a position where it cannot make a forthright representation to a federal court about the basis of the detention. At risk of putting too fine a point on it, the approach seems to put government attorneys in an ethical box, and to undermine the relationship between the branches more broadly.

Is this option nonetheless better than, for example, letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities (discussed in detail, e.g., here, Part III)? Not at all clear. The Vladeck solution requires the law to suffer some perversion. The detainees themselves will remain in detention indefinitely (in one location or another). The argument in favor can only be that the policy benefits Steve anticipates may flow from such a move – in particular, the closure of Guantanamo and the easing of the way toward repeal of the AUMF – would outweigh the policy burdens that may result. But here too, I think the argument is a tough one. Gitmo should be closed for a host of reasons, not least of which is the toll the prison has taken on U.S. national security (succeeding as a great recruiting tool for militant Islamist groups) and on our ability to pursue human rights interests globally (weakening our credibility to advocate for human rights around the world). But closing Gitmo while effectively opening a new such detention program in the United States won’t necessarily do much to repair either problem. Gitmo is a unique symbol, it is true. But our enemies are opportunistic, and the world is not blind. Likewise, while I think Steve is right that the need to preserve legal authority to hold the Gitmo detainees is part of what drives opposition to AUMF repeal, it is far from the only basis of opposition. Many members of Congress and the Administration are reluctant to repeal the AUMF because they think retaining the option of military action against Al Qaeda and associated groups – even after Afghanistan – remains an essential option in order to pursue effective counterterrorism policy. Persuading them of a contrary view is a heavy lift – with or without Guantanamo Bay.

In the meantime, there is a potentially significant policy downside worth considering: we will have taken what has been an essentially defunct provision in Section 412 written for highly exceptional purposes (the alien terrorist we’d like to deport but can’t) and turned it into a working preventive detention regime. A tool available not only for the unique legacy detainees from Gitmo, but also (drawing on what would have to become Section 412 precedent and practice) for any future executive looking for a way to hold terrorist suspects picked up anywhere. True, this is not a certain outcome of the statute’s Gitmo-related use; in principle Section 412 could have become such a tool long ago. But it does seem at least a real possibility that engaging the statute for these purposes will open the door to its broader use. I’ve written at length elsewhere of my skepticism of the effectiveness of such detention regimes as a tool of counterterrorism. Without rehearsing all of those arguments again here, I might just highlight one.

Imagine that the man who looks forward to the day when he “has the chance to kill innocent civilians” has not yet (to our knowledge) involved himself in a plot underway. Releasing him might allow intelligence to track him, and gain otherwise unavailable information about any
such plot if it exists. Detaining him, on the other hand, might prevent him from participating in any particular plot. But if security analyses of the nature of al Qaeda and associated jihadist threats are to be believed, the whole problem is that men like this grow on the proverbial trees. He is replaceable. Worse, if we detain too many such men, or detain the wrong men, or detain men under a system believed to be illegitimate – we trade his particular incapacitation for the need to incapacitate many more. What this vision describes is an approach to detention that fails ultimately to prevent an attack, but that succeeds in enhancing terrorist recruiting efforts overall. Whatever law might make doable, it cannot explain why this is something we should want done.