Disagreements Both Modest and Fundamental

There’s a lot of meat in Deborah’s  and Marty’s  posts to which I should respond. I’ll take on, first, Marty’s suggestion that habeas offers a good procedural device for resolving detention cases and then Deborah’s more fundamental suggestion that we shouldn’t let the bad case of Guantanamo make bad law on detentions more generally.

I am less sanguine than Marty is about the smoothness with which we can expect these habeas cases to proceed. But I tend to agree with him that the procedural problems are, on their own, manageable. That is, I don’t think the most difficult questions—the ones that will divide district courts and require yet another round of Supreme Court litigation to resolve—are procedural in nature. They are substantive. If we treat these detentions under the laws of war, we pose profound questions about (a) the scope of the detention authority under the laws of war, (b) the evidentiary threshold necessary to hold people, and (c) the duration of the detention authority in the context of the current conflict. (We also face profound questions in light of Boumediene about what substantive rights detainees have at Guantanamo, though the courts would confront this question in the context of a statutory detention regime as well.) The range of possible judicial holdings on each of these questions is enormous, and I really don’t see why it is preferable to leave their resolution—and the consequent parameters of our ultimate detention regime—to litigation, rather than to a considered legislative process.

It is important to understand how much common ground Marty and I really have here. We both believe that it is permissible to detain the enemy outside of the criminal justice system. We both believe that such detentions should be subject to meaningful judicial review. And we have broad, though not perfect, agreement over the general parameters of procedures to test the legality of detentions.

We disagree, as best as I can tell, largely over the proper source of the legal authority for these detentions. He believes, as does the administration (sorry for the low blow), that we should understand these detentions as a feature of the state of war that exists between the United States and al-Qaida. I believe, by contrast, that wartime detention power is a bad fit for many war on terror detainees and that we should therefore carve something new. Partly as a consequence of this difference and partly because of our different attitudes toward judicial power, Marty is content to resolve the contours of the current system through litigation, while I am keen to have Congress design a fresh detention system tailored for the problems at hand.

Deborah’s argument is, as I noted at the outset, more fundamental: She objects that in suggesting a preventive detention apparatus of any kind, I would “let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward.” My sympathy for this objection would be greater if I could muster the remotest confidence that an alternative really exists. I have, alas, no such confidence either with respect to the current detainee population at Gitmo or with respect to future captures of people against whom warrants are neither extant nor plausibly imminent. Nobody knows exactly how many current detainees are both too dangerous to set free and, for one reason or another, not amenable to trial. Without access to large volumes of classified information neither Deborah nor I has seen, we can only guess. For my part, I suspect that the number is pretty substantial. But one of the reasons I believe the legislation I support should wait for the next administration is that the Bush administration has zero credibility to make the case for this crucial proposition.

So let’s game out what happens in January if, say, Barack Obama wins the election. If his new administration comes in and declares that it believes that the United States can satisfy its baseline security interests by prosecuting those detainees against whom it can prove crimes, sending the rest home, and eschewing any preventive detention for non-battlefield captures or transfers in the future, I’ll concede that I jumped the gun in Law and the Long War and presupposed the necessity of a detention scheme that a reasonable executive branch turned out not to need. And Deborah, I will be so thrilled to be wrong that with joy in my heart, I would buy you lunch at a restaurant of your choice when you come to Washington in deserved intellectual and moral triumph over my panic.

But what if Obama comes into office and, like Marty and I, takes the position that—under one legal rubric or another—the executive needs some authority to detain al-Qaida people outside of the four corners of the criminal justice system? What if he declares that, as I suspect, about 100 to 125 people at Gitmo cannot plausibly face indictment but are too damn scary to send home and that, as president, he cannot assume the risk to American interests and civilians that they pose if set free? What if he comes in and declares that senior al-Qaida figures and major operatives—alleged 9/11 conspirator Mohammed Al-Khatani, for example—could never be tried in federal court or even military commissions because of the ugly circumstances of their interrogations, the interrogations of others, or more innocent deficiencies in certain evidence against them?

If you respond to this scenario by insisting upon the release of such people anyway and insisting in addition on not detaining such people in the future, then there is an unbridgeable divide between us. If, however, your answer to these questions is that you would, under those circumstances, be willing to contemplate the sort of regime I am talking about, I am happy to wait until January and let the facts be our guide.