Why Bother with Military Commissions?

Marty Lederman

In today's Washington Post, professors Jack Goldsmith and Eric Posner propose ditching the whole idea of military trials for Al Qaeda detainees. They note that the government has been very slow to charge many of the detainees -- only ten up to this point. And there's good reasons for that, as Goldsmith and Posner correctly note: First, trials are inappropriate, because the vast majority of the detainees have not committed anything that has traditionally been thought of as war crimes: The government "can prosecute these detainees only for the vague and problematic crime of conspiracy to commit a terrorist act based on membership in and training with al-Qaeda or the Taliban." Second, trials would be infeasible, because "witnesses are scattered around the globe, and much of the evidence is in a foreign language, or classified, or hearsay -- in many cases all of these things."

So what should be done instead? Goldsmith and Posner propose that the military simply continue to detain the prisoners until the end of hostilities with Al Qaeda (a day that we may never see), just as we have traditionally detained opposing warriors in battle until the end of the war. They note that traditionally "the purpose of wartime detention is not to punish but to prevent soldiers from returning to the battlefield." This is essentially the theme sounded by Justice O'Connor in her plurality opinion in Hamdi. And thus these are the key sentences in the editorial: "A legitimate wartime detainee is dangerous, like a violent mental patient subject to civil confinement, and that is reason enough to hold him. This has been the legal justification for terrorist detentions to date, and it will almost certainly be the basis for future detentions."

This reasoning would be fairly compelling except for one thing: Under the terms announced by Goldsmith & Posner, many (perhaps even most) of the detainees at GTMO and Bagram are not "legitimate," because they were never proven to have engaged in any hostile acts against the U.S. and its coalition, let alone to have come from any "battlefield." (See the studies of Corine Hegland and Mark Denbeaux.) As Goldsmith and Posner undoubtedly know, many of the detainees were captured and sent to one of those detention centers not in order to incapacitate them from battle, but in order to interrogate them for intelligence. The Administration's vague and capacious definition of "enemy combatant" in this conflict has extended far beyond the group of people who have committed or planned terrorist acts, or fought against us on a "battlefield": It includes persons vaguely suspected of being associated with Al Qaeda in some way, no matter how tenuously -- and we detain these people in the hopes that a small number of them, we know not which, might have valuable information for us, and not because of a fear that they will return to fight against us.

To their credit, Goldmsith and Posner (like O'Connor) recognize that the wartime-incapacitation detention model is under strain here, because this conflict may be indefinite, and not have an obvious end. Thus, they propose that "Congress should require a rigorous process for determining the status of enemy combatants," with "periodic review, perhaps yearly, to determine whether the detainee remains dangerous and thus warrants continued detention."

This is a good idea as far as it goes. But what about those hundreds of detainees who were never dangerous in the first instance?

[UPDATE: In the comments section, Scott Horton asks whether the entire conflict shouldn't simply be treated within the ordinary criminal process -- as the first bombing of the World Trade Center was (not to mention Tim McVeigh). (Correction: See Scott's clarification in the comments section -- he's simply referring to the need for some trial, perhaps military, of those actually responsible for terrorist attacks. I agree with this, and I think G&P do, too. The hard question is what to do with the hundreds of other detainees.) My response was basically this: Even if Scott is right that the major terrorist acts are crimes -- and surely he is -- G&P are also correct that Congress has overwhelmingly chosen to treat this also, or primarily, as a military conflict -- a concerted set of attacks on the U.S. as such. The vote was 518-1 on this question, and that's not going to change any time soon -- it's really a non-issue, as a practical matter.

What's most interesting about the G&P editorial is that it virtually concedes that most of the detainees have not committed crimes -- not even war crimes -- but are instead more closely analogous to traditional battlefield detainees. They're certainly right as to at least some of the GTMO and Bagram detainees -- those that fought in Afghanistan, for instance. But what about the others, those that are much more peripherally connected to AQ? And what about a group in the middle -- those who have not engaged in battle or terrorism, but who might have trained at AQ training camps? The editorial does not address this middle-ground question, but I think it will become increasingly important. Which reminds me of a question I've been meaning to ask: Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle and who have not been captured on the battlefield? I think this question is analogous to that raised in the case of many GTMO and Bagram detainees.] [UPDATE: Professor Dave Glazier has some very valuable answers to such questions, and comments on the broader problem, down in the Comments and at Intel Dump (see the comments there, too).]
Posted 12:57 AM by Marty Lederman [link]