Convictions : national security court

And Elsewhere on Capitol Hill

Deborah N. Pearlstein — Tue, 17 Jun 2008 20:09:00 GMT

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?

Deborah N. Pearlstein — Sun, 15 Jun 2008 22:51:00 GMT

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.

No Faith in the Last 228 Years?

Diane Marie Amann — Wed, 11 Jun 2008 18:06:00 GMT

In seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.

One need look no further than the Diplock system, invented by our legal progenitor, Britain, to raise immediate questions about the assertion that such tribunals can be legitimate. And as Deborah notes, it's a wonder why more don't look to "the good old-fashioned court-martial."

As for "administrative detention apparatus," can it be that this is the inevitable fallback? There are doubtless others. As I write in conclusion of Punish or Surveil, in which I measure military commissions against federal criminal courts and ordinary courts-martial, traditionally individuals whom government deems but cannot prove to be a threat were handled outside the criminal justice system, through surveillance. Even today, even with the high detention rates at places like Bagram, this is how most such persons are handled. And even were novel tribunals to be adopted, this would remain the case.

A final question:

If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?

Ye of Little Faith

Deborah N. Pearlstein — Wed, 11 Jun 2008 16:59:00 GMT

Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).

On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?

On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.

More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.

What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.

So That's What A Blogginghead Is

Deborah N. Pearlstein — Mon, 09 Jun 2008 16:28:00 GMT

I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.

Here's what I just read. Story No. 1 in (take your pick) Newsweek, Time, the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek:

Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.

The ACLU's Hina Shamsi adds: "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.

Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here. Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:

Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.

Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?

Back at You Guys on Detention Prognostications

Deborah N. Pearlstein — Tue, 03 Jun 2008 14:58:00 GMT

Marty as usual offers an elucidating post in response to my question about whether Congress is likely to wade back into terrorism detention issues this coming summer. But I gotta say, Marty, I'm closer to David on the key point. Just because a court decision in Boumediene might leave no serious reason why Congress should act before the election, doesn't mean Congress won't.

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 ...

David Barron — Mon, 02 Jun 2008 23:53:00 GMT

Marty nicely games out the various approaches the court might take in the upcoming Guantanamo cases. He indicates which outcomes would be likely to require congressional responses and which would leave the status quo on firm enough legal grounds as to make it legally unnecessary for Congress to respond. But there's another possibility that is worth considering. Even if the court reaches a holding that leaves everything that is currently in place in such a state that there is no legal need for Congress to act in response, it is entirely possible that a justice or two will write a dissenting or concurring opinion that will signal approval of various proposed legislative reforms, including the proposal for there to be a National Security Court. And if that happens, look for proponents of such measures to quickly spin such judicial dicta as being tantamount to calls by the court for a legislative response. I think that, in this context, such musing would be quite inappropriate, but even still, it might have the effect of galvanizing political support for a proposal that, as Deborah suggests, should engender lots of skepticism. Neal Katyal has elsewhere written about the role of judges as advice-givers (see his 1998 article in the Stanford Law Review, which, alas, I can find no link for). And it's definitely one way in which judges sometimes can work to shape the political process, prohibitions against advisory opinion notwithstanding. I'll be watching to see if the court—or, more likely, any of its members—see fit to assume that problematic role here.

Jack's Fix

Deborah N. Pearlstein — Sun, 06 Apr 2008 18:32:00 GMT

One of the things I agree with Ben Wittes about is the need to get serious about how a next administration is going to fix various aspects of U.S. counterterrorism policy. That's why one of the things I liked most about Jack Goldsmith's column this week on the rule of law in the "war on terror" is that its "fixing it" premise accepts the reality that something is broken. On this, and several other points he makes, Jack and I certainly agree. In the spirit of productive dialogue, though, I focus here on a few of the areas on which we don't.

Let me start with two points in this post, and I'll turn to the biggie question of a national security court separately. First, I'm 100 percent in accord with Jack's finding that the administration has had a bad habit of over-classifying information, and it would help for the public to know more—about the nature of the threat and our own responses to it. But disclosure for the purpose of restoring government credibility (though we surely need that too) is rather the least of the reasons why over-classification needs a fix. As pressing is the purpose of avoiding another 9/11—in no small measure a result of the failure of the pathologically secret intelligence agencies to share information with the other state and federal agencies that might actually help catch the terrorists. And then there's that whole old-fashioned idea of open government in a democracy. Or something like that.

Anyway, given all that, I was then surprised to encounter what sounded strangely like a warning to the next administration—that after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won't rush to eliminate the Bush program and that he or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.

Actual legal obstacles were not principally (or, as best I can tell, even modestly) what prevented the U.S. government from averting the attacks of 9/11. The notion that they were seems to me to have been a myth propagated in the wake of the attacks to avoid a more clear-eyed (and less favorable) assessment of the administration's less-than-stellar counterterrorism performance. Regardless, as authors, bloggers, and the like, we have some say in whether "any legal climb-down" (by which I take it he means any difference in approach) in detention or interrogation policies in the next administration is "perceived" as responsible for any next attack. I'd hate to think we're setting up the next perception spin even before any "climb down" or attack happens. That may well not be how Jack intended this passage. But that's how I read it.

A second issue. Jack wisely recognizes the importance of working with (rather than, say, antagonizing) international allies on whom we depend for success in our counterterrorism efforts. But I remain deeply skeptical of the utility of the recommendation he puts forward (one that has also come in recent months from current State Department Legal Adviser John Bellinger). Namely, that we work toward a new international legal framework for handling terrorist suspects. As best I can tell, the impetus for the "more international law" idea seems to come from two perceived needs: 1) Guantanamo is a catastrophic mess, it needs to be closed, and we need to do something with the prisoners that remain there, and 2) neither international nor domestic U.S. law allow us to preventively detain terrorist people who we think might someday pose a danger but as to whom we have no real evidence yet that could show they've done anything wrong.

On one, yes, of course Guantanamo is a mess—for a host of reasons. We didn't afford the detainees there even the most basic status hearing under the Geneva Conventions when we first picked them up (for no discernable reason) and still had some hope of figuring out whether we had evidence justifying their detention; we picked up a bunch of the wrong (i.e. innocent) people; we treated some of them so badly we may've compromised our ability to secure convictions of those who may actually have done bad things; and we've created the best recruiting tool al-Qaida ever could've imagined. One could go on. But why then wouldn't it be far better to try to "fix Guantanamo" by crafting a Gitmo-specific solution for these detainees—not by compromising the next 20-plus years of terrorism detention policy and practice as a result of trying to dig ourselves out of one of the worst security policy decisions of recent history? Put differently, I can't see why we should let the especially hard case make especially bad law. Whatever we do next about Gitmo—and it should involve closure, it should involve Congress, and it should involve some combination of trial, repatriation and release—I'd just as soon try not to take fixing it as our baseline for all detention measures going forward.

Now, what of preventive detention (either for those still in Gitmo or, more to the point, for anyone we might pick up tomorrow)? The view that the current web of domestic and international laws regarding detention (a key area of dispute) is insufficient for dealing with the detention needs of international counterterrorism is, to say the very least, contested. And for reasons I'll get to in a next post about a national security court, I think most arguments in favor of broader detention authority just don't hold water. In the meantime, I'd like to know whether Jack, John, et al. think even a next administration (with necessarily less international-law lethal baggage than this one) will be able to overcome hurdles of trying to negotiate a new framework here with an international community that has failed to reach consensus for decades even on the threshold question of what we mean by "terrorism." Perhaps more to the point, which do they think is more likely to come sooner—a new international legal framework or the next attack?