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And Elsewhere on Capitol Hill

For what it's worth, Bill Kristol was on Fox News Sunday claiming that "very soon," Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key passage.

KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials.  And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ...

Senator Lindsey Graham is working on this.  And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, ‘Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous.

So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.

It's Sept. 12, 2001—What Kind of Detention Power Do We Want Now?

Picking up where my last post left off. ... The policy goal is clear: The U.S. government need a detention scheme that protects as many innocent Americans as possible from becoming victims of terrorist attacks.

It seems to me there are at least four kinds of people we want to think about detaining. (By putting them in categories, I don't mean to suggest there's no overlap between them. I'm betting folks often fall into more than one category at once. I'm just trying to, as Ben would say, "game out" the possibilities. I'm keen to know what this first cut leaves out.) (1) Anyone who's been involved in an al-Qaida plot and anyone who's taken any steps to be involved in such a plot. (2) If we go to war in a country like, say, Afghanistan, we'll want to keep as many of "them" out of combat as possible so we can win and get our own folks home as quickly and as safely as possible. (3) There might be folks in New York or Iowa or Zimbabwe we want to pick up and question. They haven't done anything wrong. But they might know someone who has. (4) And there's Joe Schmo, who walks into a bar and says, "Hi. I'm from al-Qaida. Can't wait to kill some of you innocent Americans." And then he sits down for a drink with some of his pals.

Can we detain these people? To me, there's little question that the power (and procedural requirements) for detaining (1) and (2) exist under current law domestic and international law (circa 2001 and more so today). Category (1) especially goes pretty far. All a would-be detainee has to do is offer anything that looks like "material support" to anyone thinking about a plot. And he doesn't even have to do it in the United States. These days, there are a host of federal criminal laws with broad extraterritorial scope (including a ban on terrorist training, broadly defined). And Category (2)—covered by the existing law of war and international human rights law (where the law of war leaves gaps)—addresses both "international" (in the sense of state-vs.-state) and "noninternational" (in the sense of nonstate-actor involvement) armed conflicts. Is the exact scope of these laws clear? No. But there's a pretty broad area of agreement about what they cover at a minimum. And it undoubtedly includes anyone we find in, say, Afghanistan after we invade.

Now it gets trickier. Can we detain someone purely for the purpose of asking them questions? Well, we can ask anything we want of anyone otherwise properly detained under the criminal law or the law of war (or immigration detention laws or civil commitment laws or material witness laws or pretrial detention laws). And especially if we don't alienate neighborhoods where we might find informants, we can talk to anyone who'll talk to us voluntarily. Beyond that, though, we'd need (at a minimum—since international law has unfavorable things to say about such detentions) a new law passed by Congress. And existing constitutional jurisprudence makes it clear any new "interrogative detention" regime would at a minimum have to come within some pretty strict procedural limits and even then is almost certain to be challenged in the courts. It would have to be time-limited (the state has a plausible interest in questioning folks, but there are enormous individual liberty interests that must be taken into account on the other side). For the same reasons, it would have to afford any detainee at a minimum speedy access to counsel and to review, some sort of hearing giving each side a chance to present evidence, and some kind of evidentiary burden on the government to show why there's any reason it should want to detain this particular individual. The scheme will have to apply equally to citizens and noncitizens (so we don't run afoul of equal protection). And of course, of course, we can't treat anyone cruelly.

So let's ask the FBI and CIA if, under these conditions, they think such a scheme would help. Based on my offline (and admittedly nonscientific and nonexhaustive) conversations with interrogators, I think they'd say that anyone who wants to talk with us will talk—and would've talked voluntarily without custody. And anyone who doesn't want to talk with us won't—and still won't after 48, 72, or 96 hours in custody. Especially without the threat of, say, prosecution and life imprisonment hanging over their heads. In the meantime, we'd better start working hard to develop a real human intelligence capacity—one that doesn't rely on custodial interrogation but rather on good old fashioned Arabic-speaking spycraft. That's my guess; I could be wrong about what's needed to be helpful. So I'd welcome further insight here.

And now the doozy—the al-Qaida who walks into a bar. Can we detain someone who says he's al-Qaida but hasn't apparently done anything about it? Circa Sept. 11, 2001, no. Anyone in this country at least has a First Amendment (among others) right to say anything. As long as they're not inciting imminent lawless action, not much to be done except (and this shouldn't be discounted) watch them (lawfully) like a hawk. And I don't believe the president's inherent authority extends so far as to entitle him, in the absence of an armed conflict, to swoop in anywhere in the world and detain anyone he wants. Circa today, there's the Authorization for the Use of Military Force passed by Congress. And as I pointed out in the last post, we're likely to find out via the Gitmo habeas proceedings whether the AUMF authorizes the detention of any old al-Qaida member. My suspicion is that some combination of the Constitution and international law forecloses a reading of the AUMF that would authorize the detention anytime, anywhere, of anyone who does no more (more or less) than say he's a member of al-Qaida. Marty may disagree.

But let's imagine the law already permits or could be revised so as to authorize the detention of self-described al-Qaida members. Would such a detention scheme—assuming a scheme with sterling procedural protections—help on balance to prevent more terrorist attacks? I find this question a very tough call.  Here's why. So we've had this al-Qaida bar guy in "preventive" detention subject to periodic review for a period of years. He hasn't changed his tune; and we haven't found anything to charge him with. We've got two options: Release him or continue to detain. Releasing him might allow intelligence to track him and gain otherwise unavailable information about any plot he might undertake. Detaining him, on the other hand, might prevent him from participating in any particular plot. But if security analyses of the nature of al-Qaida and associated 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 of effectively indefinite detention believed (therefore) to be illegitimate, we trade his particular incapacitation for the need to incapacitate many more. This approach to detention thus fails ultimately to prevent an attack, but it succeeds in enhancing terrorist recruiting efforts overall. I need a fair bit more persuasion before I'm convinced to go down this road.

Back at You Guys on Detention Prognostications

Though I'm well out of my depth in political punditry, I've tended to view the odds of major terrorism legislation pre-election as slim—the administration is too weak, the substantive and electoral stakes too high, and the members' political interests too diverse to get something passed this time around, especially something as mammoth as a new court, or administrative detention scheme. That said, Sen. Leahy this week is hosting a Senate judiciary committee hearing on how well the federal courts handle terrorism cases, featuring several witnesses who think (for deeply well-informed reasons) the federal courts do better than any plausible alternative. Someone felt the need to push back against some brewing detention storm. My hope remains they're just whistling in the wind.

On Marty's particular point that Congress is unlikely to think about a trial system because Boumediene isn't actually about the military commission/war crimes trials at Guantanamo. Quite right, Boumediene is directly about the far less elaborate process for determining whether someone is properly detained as a "combatant" (problematically defined), whether or not they've actually committed a crime under U.S. or international law. But while that distinction appropriately matters a lot to the court, it's not at all clear Congress wouldn't want to try to deal with both matters at once (as it did the last time it legislated on the topic in 2006). Indeed, the security court proposals I've seen floating around are geared toward putting these two decisions institutionally together, merging the terrorism trial function and indefinite detention supervision function (through something like periodic review) under the control of a single body, abandoning the federal courts for criminal terrorism trials and codifying a more formalized system of preventive detention going forward. The no-doubt attractive idea is to fix the Guantanamo mess in one fell swoop. 

But here's the thing, and with apologies to Justice Holmes—the security court idea lets the hard case of Guantanamo make terrible law for counterterrorism detention going forward. The options for fixing Guantanamo are now grossly limited and badly skewed by the consequences of a series of years-old decisions to torture some of the detainees, and to delay any serious inquiry into all of the detainees' status until time and distance from evidence about the circumstances of their capture have made a meaningful hearing all but impossible. Courts-martial or criminal trials are far more difficult now since evidence obtained under coercion is inadmissible. Administrative hearings that might have been sufficient under the Geneva Conventions if conducted upon capture are now plainly inadequate. At this stage, none of the options are ideal. And none is a promising base line from which to design all detention policy going forward. 

The Guantanamo Cases—Suppose the Court Gives Congress Advice ...