Mukasey, al-Marri, and the Vexing Question of Indefinite Military Detention

Marty Lederman

The Attorney General attracted a great deal of attention last week by delivering an address to the American Enterprise Institute in which he urged Congress to do something about the habeas corpus proceedings that are now underway as a result of the Boumediene decision. That is to say, after ignoring Congress for almost eight years, and insisting all along that detention decisions can accurately and fairly be made by the Pentagon itself, without any judicial review, meaningful adversarial process, or public transparency, the Administration is now all-of-a-sudden desperate for statutory guidance -- just at the very moment, not coincidentally, that the federal courts are beginning finally to make some sense of the whole affair, to address the substantive question of who can be militarily detained, and to provide a semblance of due process to the hundreds of GTMO detainees.

There's very good reason, in other words, why there's no prospect Congress will take up the Attorney General's call before the election: The legislature quite properly thinks that now is the time to give the federal courts a chance to handle the problem deliberately and comprehensively, after which Congress can decide whether it is necessary to supplement the judiciary on any outstanding, vexing questions.

The AG's speech was important, nevertheless, because of what it reveals: for if one looks closely, one can see the areas of real vulnerability for the Administration now that its detention practices are being examined by courts in the cold light of day.

For example, it struck me as odd that the very first thing the AG insists upon as a "critical[]" element of new legislation is a provision prohibiting habeas courts from ordering "that an alien captured or detained during wartime be admitted and released into the United States." Why? If the government cannot demonstrate that the person is an enemy combatant, and there is no way to send the detainee back to their home country (such as in the case of the Uighurs, who would be persecuted if sent back to China), why is it so "critical" that courts not be able to order their release into the United States? [UPDATE: Of course in some cases -- such as where the detainee is a terrorist unconnected to al Qaeda and there is not sufficient evidence to try the person criminally -- release into the U.S. should be foreclosed. But courts are unlikely to issue such orders, anyway, and it's not clear why they should be categorically prohibited from ordering such release, even in cases where there is no established threat of dangerousness.]

The AG also wants Congress to expressly foreclose "challenges to conditions of confinement." As far as I know, there haven't been very many such cases, so again, it's not clear exactly what the worry is. Is the Administration, perhaps, concerned about judicial review of whether, say, its interrogation methods violate the law?

The most important sentence in the AG's speech, however, was a nugget buried deep within it. Strangely, Mukasey urges Congress to "acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations." As one observer has noted, this is a very perplexing request to make as a centerpiece of the Administration proposal, because Congress has already authorized the use of military force against the perpetrators of the 9/11 attacks by a 518-1 vote -- and so to "acknowledge again" the armed conflict would, indeed, be "a bit redundant." The real action, however, is in the next sentence of the speech: "Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations."

What the Attorney General is truly interested in is post-hoc statutory authorization of the Administration's detention policy. Note carefully the breadth of the categories of persons concerning whom the Administration is asking Congress to authorize indefinite military detention:

1. "those who have engaged in hostilities" -- apparently anyone, anywhere, who has engaged in "hostilities" (perhaps only against the United States and its coalition partners, but the AG's speech does not suggest such a qualification), without regard to whether the hostilities were on behalf of al Qaeda or the Taliban, or whether the detainees have any other connection to the 9/11 attacks.

and

2. those who have "purposely supported al Qaeda, the Taliban, and associated organizations."

"Support" for an organization "associated" with the Taliban, on this view, would justify indefinite military detention, without regard to whether the organization or the detainee has any connection to al Qaeda or to the 9/11 attacks, without regard to whether the detainee has committed any hostile acts, and without regard to whether the detainee presents any future risk of violence that would warrant indefinite incapacitation.

This one crucial sentence does, I think, fairly reflect the remarkable breadth of the theory of military detention power under which the Bush Administration has been operating for the past seven years, something I recently discussed in connection with the Parhat case. But if Congress were to codify this definition of "enemy combatant," it would not be "reaffirming" an authority that it has previously provided; it would, instead, be greatly expanding the authority conveyed in the AUMF, and in effect providing post hoc cover for the Administration's substantial overreading of that authority.

The reason Judge Mukasey is so eager for such a statute is that the federal courts are now beginning to call the Administration's bluff on its theory of detention authority. I've already discussed one of the most egregious cases, that of the Uighurs. But even where the government ostensibly "wins" a detention case, the judges ruling on its behalf are at pains to greatly circumscribe the category of persons who may be militarily detained.

A case in point is the extraordinarily interesting and important al-Marri decision that the en banc U.S. Court of Appeals for the Fourth Circuit issued last week. That case involves the question of whether Congress has given the President the authority to order the indefinite detention of someone (i) who resides in the United States; (ii) who was arrested in the United States; and (iii) who was already incapacitated by virtue of being detained within the ordinary criminal justice system.

The court split 5-4 on two distinct questions. Five of the judges held that if the government proves its allegations, then it does have the power to militarily detain al-Marri. One of those five judges, however (Judge Traxler) also joined with the other four judges in deciding that al-Marri was entitled to greater procedural due process protections in the habeas case testing those government allegations.

I have previously explained the principal reason why I think President Bush was not authorized to order al-Marri's indefinite military detention: President Bush "found" that al-Marri "represents a continuing, present, and grave danger to the national security of the United States," and that therefore military detention "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens." This is, in a word, nonsense. Even if everything the government alleges about al-Marri's ties to al Qaeda are true, he did not "represent a continuing, present, and grave danger to the national security of the United States" at the time of the President's order, because he was already incapacitated -- imprisoned -- within the criminal justice system, where his trial was pending. It appears plain that al-Marri was transferred from the criminal justice system to indefinite military detention not for the one reason that justifies such detention (incapacitation), but instead in order to subject him to coercive, possibly abusive, interrogation. (See my previous post, linked above, and page 38, note 19 of Judge Motz's opinion in last week's decision.) If that is correct, then in my view the transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court.

For present purposes, however, what is most important about the al-Marri case is that even the five judges of this very conservative court who ruled in favor of the Administration on the detention question did so based on a theory of detention authority far narrower than that urged (and implemented) by the Bush Administration and reflected in AG Mukasey's legislative proposal. The details are below the fold, but the summary is this:

al-Marri has been understandably advertised as a decision of a hopelessly splintered court. And, it is true, on the precise questions before the court, there were deep splits -- not only as to the precise level of due process that is required in a habeas proceeding of this sort, but also on the question of what the government has to show in order to justify the indefinite administrative detention of a U.S. person interdicted in the United States. This is a very important question, one perhaps even cert.-worthy . . . but it's important to keep in mind that, thus far, it is a question at the periphery of the war-on-terror detention regime, because only two such persons (al-Marri and Padilla) have been detained here in the U.S.

Much more significant than these divisions on the Fourth Circuit, however, is the remarkable degree of consensus on this ideologically polarized court with respect to a much more pressing, more common problem -- namely, the outer limits of the President's noncriminal detention authority where the arrest is made outside the United States. That is the central question relevant to thousands of current detainees, including the hundreds with habeas cases now pending in the District Court in D.C. And on that question, the judges of the Fourth Circuit, ranging across the political spectrum, agreed that the detention authority is much more circumscribed than what the Bush Administration has argued and implemented: Indeed, the most pro-Executive opinion of the bunch, that of Judge Wilkinson, goes so far as to conclude that the Constitution itself imposes significant limits on the detention power -- limits that are necessary lest the political branches "breach this country’s most fundamental values."

The governing opinion by Judge Traxler (joined by Judge Niemeyer) concludes (p.73) that Congress has authorized the military detention of "individuals who are dispatched [to the United States] by al Qaeda, the organization known to have carried out the 9/11 attacks upon our country, as sleeper agents and terrorist operatives charged with the task of committing additional attacks upon our homeland." In other words (p.76), "operatives who associate with the enemy, be that the al Qaeda organization or the Taliban government, "'and with its aid, guidance and direction enter this country bent on hostile acts'" (quoting Quirin).

Beyond that category of persons who are bent on hostile acts under the direction of al Qaeda or the Taliban, Judge Traxler does not further examine the scope of the military detention authority, except to intriguingly hint (p.76) that Congress has not authorized the President to indefinitely detain "a civilian who became sympathetic to al-Qaeda’s mission and sought to support it in indirect ways."

Judge Williams, joined by Judge Duncan, more precisely (p.116) defines "an enemy combatant subject to detention pursuant to Congressional authorizations as an individual who meets two criteria: (1) he attempts or engages in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force." If a detainee does not meet these criteria, Judge Williams concludes, then not only isn't the detention authorized by Congress, but "the Constitution forbids such detention" (p.115).

This is very similar to the conclusion reached by Judge Wilkinson in his remarkable solo opinion. I disagree with important aspects of that opinion that bear on al-Marri's case: In particular, I question Judge Wilkinson's assumption that Congress did not intend to put the government to a higher burden of proof if it wishes to use military detention with respect to U.S. persons who are (i) detained in the United States and who (ii) can be tried for crimes. Our tradition, and that of other nations, is to use the criminal justice system in such cases, lest we give the executive too broad a detention power with regard to domestic activities and persons. Unless and until Congress speaks clearly, I think it fair to assume that the legislature did not intend to depart from this historical tradition in the dramatic way suggested by Judge Wilkinson. Moreover, I think Judge Wilkinson is fundamentally mistaken in arguing (pp. 148-149) that one sufficient reason for transferring such a detainee out of the criminal justice system and into military detention is that it is easier to squeeze information out of a suspect who is held "incommunicado." The very characteristics of such "incommunicado" detention that make it attractive to Judge Wilkinson -- the fear, disorientation and absence of legal assistance that might lead such detainees to reveal valuable intelligence information -- not to mention the severe risk of abusive cruel treatment in such a legal black hole, make this rationale an illegitimate basis for eschewing the criminal justice system, in my view (and I think it's fair to read the Supreme Court as having said likewise in Hamdi). The singular legitimate justification for such detention is to incapacitate dangerous enemies who would otherwise pose a threat to the safety of our troops or citizens.

Those important differences noted, however, I think it is fair to say that Judge Wilkinson's very long and detailed opinion is by far the most thoughtful and thorough attempt by any American jurist thus far to examine the very difficult question of just who may be militarily detained under the AUMF and the Constitution. He makes a valiant effort to construct a "principled [legal] framework" for drawing the important lines between who can be administratively detained and who must be criminally prosecuted, based on careful readings of congressional intent, the laws of war, Supreme Court precedents, and constitutional limits. Even if, like me, you do not agree with Judge Wilkinson's argument in full (see the previous paragraph), he should be applauded for advancing the ball so significantly. Along with the thoughtful alternative views of his colleagues in al-Marri, the recent, grounbreaking Israeli Supreme Court decision on this subject, and Judge Garland's extraordinary opinion in Parhat (which I discussed here), we are now much father along than we ever were pre-Boumediene in finally figuring out just who may be detained, and how far astray the Bush Administration has gone in its indiscriminate, interrogation-based detention policy.

Judge Wilkinson begins with important fundamental premises, largely ignored by the Executive:

While the ability to detain eliminates many of the problems associated with criminal prosecution, open-ended detention is not an acceptable way to conform our historic commitments to liberty to the exigencies of this different kind of conflict. Under the military detention model, the President may detain enemy combatants without trying them in the criminal justice system. This is an awesome power and, as such, must be properly circumscribed. Detainees are not afforded the full protections of the Bill of Rights or the Federal Rules of Criminal Procedure, and the executive’s actions are not subject to the accountability that is inherent in the criminal justice system. To turn every crime that might be tenuously linked to terrorism into a military matter would breach this country’s most fundamental values.

Judge Wilkinson then searches for "a set of criteria that enable us to identify when military detention is a constitutionally permissible option," and finds such criteria predominantly in "traditional law of war principles" that he (correctly) concludes should guide not only our interpretation of congressional intent, but that also, and more fundamentally, "inform our understanding of the war powers in Articles I and II [of the Constitution] and of the enemy combatant category." (In thus suggesting that the laws of war should inform our understanding of the political branches' constitutional war powers, Judge Wilkinson here is sounding a theme similar to that recently pressed by David Golove.)

Judge Wilkinson concludes, in particular, that "traditional law of war principles are consistent with the belief that indiscriminate detention is antithetical to constitutional norms and cannot be tolerated under our system of justice." His discussion thereafter is built upon what he calls "the cardinal principle of discrimination, which seeks to minimize the unnecessary destruction of life and property that results from purposeless or wanton violence." This principle of discrimination "allows warring nations to detain those who do represent a military threat, ensuring that such persons, but only those persons, are removed from the field of conflict. . . . This principle of discrimination is effectuated through the category of 'enemy combatant.' Only 'enemy combatants' may be the intended targets of military force or militarily detained."

Judge Wilkinson then develops the following three-criteria test as a constitutional limit (reflecting also the laws of war as "translated" to this new sort of conflict, as well as presumed congressional intent) on who may be administratively detained as an enemy combatant:

[T]the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization.

As I've explained above, I think that there are other limits, as well, at least for those persons detained in the United States who may be incapacitated within the criminal justice system. But even if we were to limit ourselves to Judge Wilkinson's three-part test, it is easy to see why that test provides a much more circumscribed authority than that the Bush Administration has exercised and Judge Mukasey has asked Congress to codify:

The first criterion, the membership requirement, distinguishes those who are the enemy "from those who merely sympathize with the enemy." The second criterion ensures what Judge Wilkinson describes as "a significant political check": Although it "recognizes that Congress may authorize the use of military force against nonstate actors, such as terrorist organizations," it also "appropriately excludes from the category of 'enemy' those persons or groups against whom Congress has not authorized the use of military force." "For certain," Judge Wilkinson emphasizes, "there are many individuals and organizations engaged in unlawful conduct, and even terrorism. But most of these individuals and organizations have nothing to do with al Qaeda, its affiliates, or the September 11 attacks. Under this criterion, such persons would not be eligible for military detention under the AUMF. This is . . . appropriate in light of the constitutional imperative that military detention be the exception and not the rule." (Judge Wilkinson emphasizes, appropriately, that such persons may, of course, be punished for their violent conduct in the ordinary criminal justice system.)

Most important, perhaps, is the third Wilkinson criterion:

If the first two criteria address who in modern warfare is the enemy, the third criterion addresses who is the combatant. Historically, this distinction has separated those with military aims from those who do not present a threat to opposing forces. Though yesterday’s soldier has been replaced, at least in part, by those who eschew the conventions of lawful warfare, the purpose underlying this distinction remains unchanged. In light of today’s realities, a "combatant" is a person who knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization. Like the first two criteria, this requirement closely tracks the relevant traditional law of war rules.

Under this criterion, those who use military-like force against American soldiers or civilians obviously qualify as combatants. Similarly, members of an enemy sleeper terrorist cell that have taken steps, even if preliminary in nature, toward an act of destruction are also considered combatants. Conversely, persons traditionally considered civilians, such as members of the enemy organization who do not possess hostile or military designs, are non-combatants and may not be detained by the military. This includes persons who would clearly be non-combatants, such as a "physician who treated a member of al Qaeda," because they intend no harm to persons or property. Such persons would not be subject to military detention.

If these three criteria were to be applied, it would mean that the Bush Administration lacks authority for the military detention of a great number of its detainees -- not only those it has already released, but also many of those remaining at GTMO, at Bagram, and elsewhere. For example, as I've discussed with respect to the Parhat case, the Bush Administration has detained several Uighurs for more than six years, even though such persons are not even affiliated with, let alone members of, the governments and organizations that Congress identified in the AUMF. They, and many other detainees, do not even satisfy the first two of the Wilkinson criteria. As Ben Wittes points out in his new book Law and the Long War (see pages 79-80), even on the government's own explanations of the detainability of the GTMO detainess, the majority of such prisoners are not members of al Qaeda or the Taliban, let alone members who have engaged in or planned belligerent actions: ""Ultimately, the government labeled more than twice as many detainees as associated with the groups than it branded as 'members' of them--and it branbded almost four times as many detainees 'members' as it did 'fighters.'"

A significant number of other detainees might even be members of al Qaeda or the Taliban, but have not "knowingly plan[ned] or engage[d] in conduct that harms or aims to harm persons or property for the purpose of furthering [al Qaeda's or the Taliban's] military goals." Those detainees would not satisfy the third Wilkinson criterion.

The Administration's policy and practice has been, in effect, to track the rationale in John Yoo's war powers opinion of September 25, 2001, which asserted the power of the President to disregard any limitations or limited authorizations contained in Congress's AUMF: Under the theory of that opinion, the Bush Administration has asserted and exercised the power to indefinitely detain any persons who the Executive branch has determined to be a terrorist threat of any sort (without regard to membership in al Qaeda or the Taliban) -- to (in Yoo's words) "reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks" -- or who are "affiliated with" terrorist organizations in virtually any indirect way. Such is the inevitable, indiscriminate result of a detention policy designed to procure actionable intelligence from any potential source, rather than one designed to incapacitate the command and control structure of a legislatively identified enemy.

Judge Mukasey is now asking Congress to ratify this policy -- to allow indefinite detention of anyone who has "engaged in hostilities" and of anyone who has "supported" not only al Qaeda and the Taliban, but all (undefined) "associated organizations," as well.

But not only has Congress not previously authorized such a vast power -- if Judge Wilkinson and his quite pro-executive colleagues on the Fourth Circuit are to be believed, it would be unconstitutional to do so.
Posted 12:28 AM by Marty Lederman [link]