Further Thoughts on Preventing Padilla from "Returning" to the Afghan Battlefield

Marty Lederman

As I explain below, in yesterday's Padilla decision, Judge Luttig's analysis is critically dependent on the notion that if the government's allegations are correct, then Padilla's case is factually indistinguishable from Hamdi's. Not so fast.

Judge Luttig correctly explains (see pages 10-11) that the controlling opinion of Justice O'Connor in Hamdi was based on the logic that the AUMF authorizes detentions that would be permisible under the laws of armed conflict, and such laws of armed conflict permit detentions of enemy combatants on the battlefield to ensure that such combatants are prevented from returning to the battlefield to fight: "[D]etention to prevent a combatant's return to the battlefield is a fundamental incident of waging war." 124 S. Ct. at 2641. This proposition is the linchpin of Judge Luttig's opinion.

Judge Luttig then argues that Padilla, like Hamdi, falls in this category, and was detained in Chicago to prevent his return to fight against the U.S. in Afghanistan. In the very first sentence of his opinion, he alleges that Padilla "took up armes against United States forces" in Afghanistan -- and he repeats this "taking up arms against U.S. forces" theme no fewer than six times in the opinion. Here's how Judge Luttig puts the case for a Padilla/Hamdi equivalence in a nutshell (pp. 11-12):

[L]ike Hamdi, Padilla took up arms against United States forces in [Afghanistan] in the same way and to the same extent as did Hamdi [citing the Jeffrey Rapp Declaraion in Padilla and footnote 1 and page 2637 of the O'Connor opinion in Hamdi]. Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi's in order to prevent his return to the battlefield, the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war."

Or, as Judge Luttig later summarizes the argument (p.15), "Padilla poses the same threat of returning to the battlefield as Hamdi posed at the time of the Supreme Court's adjudication of Hamdi's petition. Padilla's detention is thus 'necessary and appropriate' [the words of the AUMF] to the same extent as was Hamdi's."

Padilla was alleged to have "taken up arms" against U.S. forces in Afghanistan? And he was detained because he posed a threat of returning to battle against the U.S. in Afghanistan? I've received many e-mails from observers who were surprised to hear that that was the the government's new justification for the detention; who have wondered why Padilla's counsel would have conceded such facts, even for purposes of summary judgment; and who concluded after reading the opinion that, hey, if that's what the allegations are, then perhaps there's something to Judge Luttig's logic -- this case does seem to follow directly from Hamdi -- assuming the Government can prove its case.

But things are not what they seem.

In support of his argument, Judge Luttig relies almost exclusively on the August 2004 Declaration of Jeffrey Rapp, the Director of the DoD Joint Intelligence Task Force for Combatting Terrorism. See pages 17-24 of the Joint Appendix. Rapp paints a picture of a very bad guy, indeed. If the allegations are proven, Padilla certainly deserves to be tried and, if convicted, punished for several felonies (principally conspiracy) and/or war crimes; and perhaps it would even be permissible for the military to subject him to indefinite preventive detention without trial so as ensure that he would not put into action some of the terrible plots that he is alleged to have hatched -- indeed, that preventive executive detention question is the question that everyone assumed the court would answer in yesterday's case.

But on reading the Rapp Declaration, two things jump out immediately:

First, the allegations contained therein are based on information gleaned from "Padilla's statements during post-capture interrogation." Thus, whether or not such information could be the basis for future detention, it could not have been the basis for Padilla's original apprehension and detention -- in which he was kept in isolation, without access to any attorney or other visitors -- or for the prolonged detention that he suffered before he conveyed such information.

Second, Rapp does not say, or even suggest, that Padilla's detention was at any time effected for purposes of preventing him from returning to Afghanistan to take up arms against the U.S. in hostilities there. He does not, in other words, argue that Padilla was detained for the same reasons as was Hamdi, or that (in Judge Luttig's words) Padilla "poses the same threat of returning to the battlefield as Hamdi posed." That is to say, neither Rapp nor (as far as I can tell) the Department of Justice has ever invoked Judge Luttig's "prevention of return to the Afghan battlefield" rationale as the basis for Padilla's detention!

Here's what Rapp does attest, in paragraphs 9 and 10 of his Declaration, about Padilla's alleged post-9/11 conduct in Afghanistan (and again, although I have no reason to think the account is untrue, this is based on Padilla's own statements taken during highly coercive interrogation long after he was detained at O'Hare):

Once the United States commenced combat operations against the Taliban and al Qaeda in Afghanistan [in late 2001], Padilla and his fellow al Qaeda operatives began moving from safehouse to safehouse in an effort to avoid being bombed by U.S. or coalition forces. In mid-November 2001, an air strike destroyed a safehouse in Afghanistan and killed [al Qaeda Commander Mohammad] Atef. Padilla was staying at a different al Qaeda safehouse that day, but he and other al Qaeda operatives participated in an attempt to rescue survivors and retrieve Atef's body from the rubble. After this attack, Padilla, armed with an assault rifle, along with numerous other al Qaeda operatives, began moving toward the mountainous border with Pakistan near Khoust, Afghanistan, in a further effort to avoid U.S. airstrikes and capture by U.S. forces. Padilla was thus armed and present in a combat zone during armed conflict between al Qaeda/Taliban foces and the armed forces of the United States and its coalition partners. After taking cover in a network of caves and bunkers near Khoust, the al Qaeda operatives, including Padilla, were escorted by Taliban personnel across the border into Pakistan in groups of 15-20. Padila crossed into Pakistan in January 2002.

Rapp does not make any allegations of a subsequent return to Afghanistan, of any possible plans for Padilla to return to Afghanistan, or that his detention was in any way motivated by our Government's attempt to prevent him from returning to Afghanistan, to "take up arms" or otherwise.

That doesn't sound too much like Hamdi's "carrying a weapon against American troops on a foreign battlefield," Hamdi, 124 S. Ct. at 2642 n.1, now does it? When Hamdi was detained, there was every reason to think that such detention would prevent him from harming U.S. and coalition forces on the battlefield. (The Government's brief in Hamdi alleged that "[i]n late 2001, while Northern Alliance forces were engaged in battle with the Taliban near Konduz, Afghanistan, Hamdi surrendered to Northern Alliance forces—while armed [with an AK-47]—along with a Taliban unit.") More importantly, that's the reason that the Hamdi plurality upheld the detention. But quite obviously, even if one credits everything Rapp writes, there was virtually no basis for fearing that when he was discovered at O'Hare Airport, there was any chance that Padilla would return to Afghanistan to take up arms there. After all, the Rapp Declaration describes a man who was trying desperately to avoid fighting, and to flee from the battlefield, and from Afghanistan, as quickly as humanly possible. Indeed, although Judge Luttig goes to great pains to repeatedly allege that Padilla "took up arms" against U.S. troops in Afghanistan, the
Rapp Declaration tends to undermine such a rhetorically weighted characterization -- Padilla never encountered U.S. forces and or aimed his weapon at them; instead, he was successfully in his determination to avoid any contact with U.S. forces.

Now, presumably under the law of armed conflict, and thus under the AUMF, Padilla could have been indefinitely detained by the military in Afghanistan, even as he fled, simply because he was "armed and present in a combat zone during armed conflict between al Qaeda/Taliban foces and the armed forces of the United States and its coalition partners" -- in part because forces on the battlefield cannot be expected to carefully distinguish among those armed enemies who are permanently fleeing battle, and those who pose a risk of future hostile return to the battlefield. But the question in the case, as Judge Luttig has framed it, is whether there was any reasonable risk of Padilla's return to the battlefield of Afghanistan when he arrived at O'Hare Airport four months after he left Afghanistan. Nothing in the Rapp Declaration even hints at such a rationale.

Accordingly, Judge Luttig is simply wrong in asserting that, according to the Government's allegations, Padilla's detention "is no less necessary than was Hamdi's in order to prevent his return to the battlefield." It was far less necessary! (And that's even assuming what is not in fact the case -- namely, that the FBI knew when it detained Padilla that he had been armed in Afghanistan and had quickly fled for the Pakistan border.)

In other words, even putting the Government's allegations in the best possible light, and even assuming arguendo what we should not assume -- namely, that they have some bearing on why Padilla was detained before he conveyed such information in interrogation -- the case is not controlled by the logic or rationale of Hamdi at all, pace Judge Luttig.

I want to be clear here: The fact that Judge Luttig's argument does not stand up to scrutiny does not necessarily mean that the outcome of the case is wrong. Judge Luttig's "Hamdi equivalence" argument was not the argument on which the Department of Justice relied. (Caveat: I have not yet thoroughly read through both DOJ briefs and the transcript of argument to see if this rationale appears anywhere -- but it certainly was not the Government's principal argument.) DOJ argued, instead, that Padilla was detained in order to prevent him from undertaking the hostile actions that he is alleged to have planned here in the United States -- on the theory that the homeland is the new "battlefield" in the Global War on Terror. In addition, the Government also has strongly implied what I think was the real reason that Padilla was subject to military detention, rather than treatment in the criminal justice system: because DoD wanted to interrogate him for valuable information outside the constraints (e.g., the presence of lawyers) of the criminal justice system. See page 19 of Judge Luttig's opinion: "[I]n many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee's communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined –- impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security."

It is arguable that these rationales might support the indefinite military detention of Padilla -- as opposed to consigning him to the criminal justice system. However:

(i) Unlike Judge Luttig's invented-from-whole-cloth "to prevent Padilla's return to battle in Afghanistan" theory, those arguments do not neatly follow as a matter of logic from Hamdi itself;

(ii) The second, interrogation-based rationale, is, I submit, foreclosed by Hamdi (I might write about this in another post, time permitting);

(iii) The first rationale -- that the "U.S. is a battlefield," and that Padilla could be detained outside the available civil process to prevent him from hostile conduct here -- is dependent on a particular, and highly contested, reading (and reconciling) of Quirin, Endo, Hamdi and Milligan (basically what Judge Luttig lays out on pages 12-13 and 23-24 of his opinion, in order to "reinforce" his principal argument); and

(iv) The facts on which Judge Luttig principally relies -- that Padilla was once armed while fleeing from Afghanistan -- have virtually no bearing on either of these two rationales. Whether Padilla could be detained outside the criminal justice system either because he was a threat to commit terrorist crimes here, or because he may have had valuable intelligence information, is in no way dependent on whether he once carried a rifle in Afghanistan. If those rationales suffice to justify the detention, then they would do so even if he had never stepped foot in Afghanistan; and if they are insufficient, his presence on the Afghan "battlefield" in late 2001 doesn't change an unauthorized detention into an authorized detention. That is to say, unlike in Hamdi -- where the fact the detainee took up arms against the U.S. coalition in Afghanistan was central to the holding -- in this case Padilla's rifle-carrying in Afghanistan is a red herring, and should have little, if any, impact on the resolution of the case.

See also Eric Muller's discussion of how the Luttig decision fails adequately to deal with Ex Parte Endo.
Posted 5:30 AM by Marty Lederman [link]