Executive Detention after Bin Laden

Guest Blogger

Liza Goitein

Gerard, I think you've correctly described what the Supreme Court would hold. The problem is, when the Supreme Court decided Hamdi, it ignored a key distinction between how the law of war (or "IHL," for "international humanitarian law") treats international armed conflict ("IAC") and how it treats non-international armed conflict ("NIAC"). IHL permits the detention of prisoners of war for the duration of the hostilities in IAC. As Gabor Rona has pointed out, however, IHL neither authorizes nor forbids the detention of fighters in NIAC -- it leaves that issue entirely to domestic law. At the time Hamdi was apprehended, the conflict was an IAC, so his detention was authorized by IHL until that conflict ended. But by the time the Supreme Court issued its ruling three years later, the IAC phase of the conflict had indeed ended (upon the fall of the Taliban), and the conflict was now a NIAC -- meaning that domestic law and not IHL governed the appropriateness of Hamdi's detention. The Supreme Court held that the AUMF (which is, of course, domestic law -- although Rona would argue that the relevant domestic law is Afghanistan's) allowed Hamdi's continuing detention, but it did so by concluding that the AUMF incorporated the principles of IHL -- and those principles don't actually have anything to say about detention in NIAC.

In short, I think the Supreme Court was wrong in holding that the law of war authorized Hamdi's continuing detention in 2004. But I'm pretty sure the Court gets to say what the law is. In light of that (occasionally regrettable) fact, I think Gerard's analysis hits the mark: the AUMF still permits detention post-bin Laden, but may cease to do so if/when we are no longer actively fighting in Afghanistan.

Liza Goitein is Co-Director, Liberty and National Security Program, The Brennan Center for Justice. You can reach her by e-mail at goiteine at exchange.law.nyu.edu
Posted 6:49 PM by Guest Blogger [link]

David Brooks gets nostalgic for the 18th century

Sandy Levinson

David Brooks continues to be perhaps the most vexing of the NYTimes's columnists. He is clearly smart and often quite interesting. But, with regularity, he writes columns whose flaws seem obvious. So consider his column in today's Times, in which he basically laments the collapse of the Federalist Party in the 1800 election. That is, he beleives that the United States is (or ought to be) a "republic," very definitely not a "democracy." (No doubt he would regard it as a strength of the United States Constitution that it is "undemocratic.") As Gordon Wood points out in his magisterial Oxford history of the United States between 1789-1815, the Federalists (like, for that matter, most of those who framed the Constitution) decidedly mistrusted the masses and wished for leadership by elites who could be counted on to identify and then to act on "the public interest" instead of crasser interests (such as the preferences of their unenlightened constituents, who were expected to defer to their betters rather than prefer officeholders who took constituents' views all that seriously).

For better or worse, this vision of American politics, which among other things is based on the premise that there will be no "factious" political parties, was, as some say about decisions like Plessy, "wrong the day it was decided," and that was made clear for all to see no later than 1800. But the call for a return to a "republican" political order is a constant of American politics. It is the heart of the Progressive vision of high technocracy (and non-partisan elections) and of Michael Sandel's emphasis on the politics of the "public good" instead of a necessarily selfish "liberalism." One could also see such elements in the revival of "civic republicanism" that was an important part of the legal academy in the '80's (led by, among others, Cass Sunstein, who is now a leading member of the Obama Administration). Though Brooks is a Republican, Democrats, like Sunstein and Obama, are certainly attracted to it. (Perhaps this helps to explain why the "community organizer President" basically suspended any community organizing, which is too "democratic." Brooks very much likes that Obama.)

I don't mean to demean that vision. I suspect that all of us share the nostalgia at one time or another. Who actually likes the current decadent form of party "competition," well captured in the current Onion? But, as my then-colleague at Ohio State, David Kettler, pointed out in a brilliant essay some 40 years ago, republican nostalgists avoid coming to terms with the fact that it rested on a particular vision of political sociology, including, among other things, the deference by lower orders to their elite betters. (Not surprisingly, Brooks is nostalgic for the "establishment" that continued to possess a great deal of influence into the 1960s and itself collasped in the wake of Vietnam and the civil rights movement.) Brooks is ultimately engaging in fantasy, hoping that by some truly magical process a self-interested consumerist culture that has been systematically created over the past 200 years will simply disappear. However explicable his hope, it is deeply unserious. He needs, among other things, to reread Daniel Bell's Cultural Contradictions of Capitalism (not to mention The Communist Manifesto, which notes that under the pressure of capitalism "all that is solid," such as the kind of society for which Brooks is so nostalgiv, "melts into air").
Posted 6:26 PM by Sandy Levinson [link] (13) comments

The AUMF and Executive Detention

Gerard N. Magliocca

And now for something completely different. Liza Goitein, who is a guest blogger here, is my friend and law school classmate, and we thought that it would be fun to try some posts every once in a while in which we would go back-and-forth on a topic. Depending on your point of view, this could be called "Point-Counterpoint," "Crossfire," or "Waldorf & Statler," (the two muppets who make fun of everyone from the balcony).

To start this off, I want to repeat an observation that I made over on Concurring Opinions about the death of Bin Laden. In my view, this does not terminate the authorization given to the President by Congress after 9/11 to detain indefinitely alleged enemy combatants. The Supreme Court was quite clear in Hamdi that the AUMF would continue to authorize such detentions so long as combat operations were ongoing in Afghanistan. If the President carries out his promise to withdraw from the Afghan war this summer, then I think that the detainees would have a viable claim that they could no longer be held without a new authorization. But not until then, and even then it would depend on the nature of the withdrawal.

Liza -- you're up!
Posted 3:55 PM by Gerard N. Magliocca [link]

Bin Laden and the Torture Debate

Jonathan Hafetz

According to the New York Times, Osama bin Laden's death has "reignited" the torture debate. Did "enhanced interrogation techniques" lead to critical information in locating the al Qaeda leader? Does torture produce useful intelligence? Should it matter? Several excellent posts here at Balkinization address these and other questions.
Posted 9:21 PM by Jonathan Hafetz [link]

Still Ticking, Ten Years Later

Alice Ristroph

Remember when proponents of torture used to invoke the ticking time bomb? To show that torture was sometimes permissible or even morally required, people would imagine a ticking bomb, a terrorist in custody who knew the location of the bomb, and the imminent death of gazillions of innocent civilians. Wouldn’t you use the waterboard? Tick, tick.

The fantasy of the ticking bomb was designed to make people more comfortable with torture, in part by suggesting certain conditions on its use: most importantly, an imminent threat of catastrophic harm that could be averted by torture and torture alone. The renewed endorsements of torture after the death of Osama bin Laden illustrate that it’s not about the ticking after all. On the revised account, the torture of suspected terrorists was justified if it yielded one piece of information that contributed to the eventual success, years after the torture took place, of a long-term manhunt (a hunt based, by all reports, on a vast array of intelligence from many different sources). Torture need not “work” quickly, it need not be the only means of gaining the information, and the information need not be essential to avert imminent catastrophe. Indeed, torture need not be concerned with future threats at all – it seems widely acknowledged that killing bin Laden was a matter of “bringing him to justice” for past deeds, or, as one honest fellow put it, exacting revenge.

I haven’t blogged in a long time, in part because I’ve been occupied by a book manuscript about the ways we distinguish legitimate violence from illegitimate violence. Across different legal and political contexts, there are familiar principles of distinction: imminence is one (legitimate violence responds to an imminent threat); necessity is another (legitimate violence is necessary to avert some significant harm). In several arenas, including policing, prisons, and military action, I’ve found that these principles can never do all the work of distinction that they are asked to do. It’s not just that imminence and necessity are in the eye of the beholder, or rather, the eye of the agent of violence. Once we get used to doing a certain kind of violence, we tend to stop caring about imminence or necessity – or proportionality, or judicial review, or other familiar principles of distinction. And, with due respect to others here at Balkinization, I suspect effectiveness is just one more principle of distinction that turns out not to matter very much. Really, there seems to be only one durable principle of distinction, one solidly reliable way to differentiate legitimate violence from illegitimate: the difference between us and them. Torture is legitimate when it’s something we do to them. The ticking bomb has fallen silent, but this idea endures.

Posted 12:28 PM by Alice Ristroph [link]

Serves Me Right for Talking About It

Deborah Pearlstein

Cross-posted at Opinio Juris

In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree.

“Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or had the program not existed at all and had the interrogators in question been military folks. One can never establish a but-for relationship between coercive practices and any valuable intelligence that we learned following its use. But I do not think the effort to understand the value added of the CIA program is useless. In fact, I think it’s critical. If one believes that the program contributed nothing–or little–of value that could not have been obtained in a manner that did not trouble our collective conscience, one will and should feel very differently about it than one will and should if one believes it provided critical intelligence that saved American lives and led to the capture and killing of key Al Qaeda figures. While it may be impossible to get certainty on the answers to these questions, it should not be impossible to get some more solid understanding of the matter than we currently have as a society. A lot of people are quick to opine on this matter in one direction or another, but it has received virtually no impartial study.”

Various things to say. First, I quite agree that impartial study of intelligence methods and their effects is of great value. That (among other reasons) is why I have long supported the establishment of an independent commission that would look back over intelligence practices of the past decade and evaluate not only questions of history, but also questions of strategic impact, small and large. It is also why I thought it worth looking closely at the findings those impartial studies that do exist – like the 2006 report on Educing Information by the Intelligence Science Board – which I’ve often cited for its conclusion, among others, that “knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collectors” with current populations of interest. In other words, 4 years in to our dramatic program of coercive intelligence collection, no one knew in any real way how to secure the revelation of accurate information from an individual. My point in this week’s post was not that such investigations, when rigorously and ethically done, lack value. Just the opposite, it was to note that post hoc assertions based on incomplete information about a particular anecdotal case are no substitute for rational study. Put differently, for every “maybe some guy in Gitmo said something useful” story, there’s a “some guy in Gitmo said something false that lead us to war in Iraq” story. Dueling anecdotes do nothing to advance – and plenty to mislead – the inquiry about efficacy.

Second, and more broadly, let’s imagine for a minute that the closest to “truth” about efficacy we will ever be able to get is that sometimes people say useful things under torture and sometimes they don’t. In other words, let’s imagine that study will not be able to conclusively foreclose the possibility that on some occasion, someone will say something true if you torture them. (With more study, maybe one could discern what kinds of torture are more likely to produce true answers than false ones, even true answers not otherwise obtainable, but I’d be fascinated to hear the scenario for doing this in any ethical way.) The far harder question still remains: What policy conclusion follows from this result? How does one weigh this information in a cost-benefit analysis that includes tactical gain vs. strategic loss, effects on our own forces, variations among individual responses, designs of training and education, alternative options (including a finding that sometimes, someone will say something true if you give them a Big Mac), or all of the important arguments from philosophy, morality, law, medicine and religion that say efficacy is entirely beside the point, and we can decide as humans that there are some kinds of things we simply won’t do? Science can be enormously valuable. But I think it’s a mistake to imagine it will get us out of – or even much clarify – the otherwise far deeper question. In all events, for those who have not yet settled this matter in their own minds, this week strikes me as a particularly inopportune time to try.
Posted 12:04 PM by Deborah Pearlstein [link]

Torture and Public Opinion

Jason Mazzone

In my post on Monday, I observed that public support for torturing terrorism suspects is likely to increase following the location and killing of Osama bin Laden. Deborah Pearlstein's thoughtful plea that we not "talk about torture" has fallen on deaf ears.
Posted 9:25 AM by Jason Mazzone [link]

Bin Laden's greatest legacy: the surveillance state

JB

Osama Bin Laden's death comes several months after a wave of democratic uprisings in the Arab world. These two sets of events, considered together, remind us of the power of digital technologies. These technologies have reconfigured many different aspects of our lives, including both terrorism and democratic politics. They have also revolutionized government surveillance.

Digital technologies did not cause the Arab uprisings in late 2010 and early 2011. But they helped lower the costs of democratic protest and collective action. Digital technologies did not cause Al Qaeda or other forms of modern terrorism. But they helped terrorists create new types of organizations, and they helped radical and extremist propaganda to circulate throughout the world, gaining new adherents, and working to legitimate acts of terrorism.

Digital technology has also played an important role in government responses to both developments-- both surveillance by authoritarian regimes seeking to suppress democratic uprisings and surveillance by Western countries seeking to suppress Al Qaeda.

What digital technology does is create new opportunities on the one hand, and new forms of vulnerability on the other. It is up to different actors how they will take advantage of these opportunities and manage vulnerabilities.

I remain hopeful that, in the long run, digital technologies will help the forces of democracy and human liberty win out. But as the examples of Al Qaeda and surveillance of democratic movements show, the outcome is still very much in doubt.

Even if Al Qaeda is ultimately defeated, the fear of terrorism--and the political opportunity that the fear of terrorism presents-- have driven western governments, and especially the United States, to build ever larger surveillance states, justifying ever greater government expenditures and ever greater expansion of surveillance bureaucracies.

Currently there is an energetic debate over whether Bin Laden's capture and execution was facilitated by the Bush Administration's torture policies. This debate overlooks a far larger concern: how the hunt for Al Qaeda justified the government's permanent expansion of surveillance capabilities. President Obama ordered an end to the use of torture techniques as soon as he took office, but he has not ordered an end to the use of these surveillance capacities; indeed, he has expanded them. Government surveillance programs are only likely to grow over the years, and they are likely to affect many more people-- including American citizens-- for a much longer time than the Bush Administration's embrace of torture ever did.

The September 11th attacks did not cause the construction of the national surveillance state, but they spurred on its growth enormously. Indeed, the national surveillance state may be Osama Bin Laden's most powerful and lasting legacy; for even after he and all of his allies are gone, the surveillance state will affect how Americans live and how their government operates for decades to come. Bin Laden was not able to destroy us. But he might have been a precipitating cause in the destruction, or at least the limitation, of important freedoms. If it is true, as politicians repeatedly tell us, that Bin Laden hated us for our freedoms, that would be a terrible victory indeed.

All of this should give us pause. I think it is by now settled that America, like many other nations will build out a surveillance state. The question is what kind of state it will build out. Bin Laden's death will mean many things to many people. I suggest that it should offer us an strategic opportunity to stop for a moment, and to rethink our energetic dash to build out the most powerful and least constrained surveillance operations that government money can buy. That is because the challenge we face today is *not* to build the most effective surveillance state possible. It is to make effective surveillance and democracy live together.
Posted 3:35 PM by JB [link]

Let's Not Talk About Torture

Deborah Pearlstein

Cross-posted at Opinio Juris

For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama to rethink his opposition to torture. Emptywheel, naturally, says it’s clear waterboarding had nothing to do with it. FWIW, Rumsfeld appears far closer to Emptywheel’s view than King’s.

Why is this a fruitless (not to mention so, so old) conversation? Any number of reasons. For one, the odds that we will ever know precisely who produced the critical piece of information when and for what reason are negligible. If perchance we do learn the actual “fact” about what happened – facts as distinct from competing anecdotal accounts selectively leaked by “official sources” with agendas of their own – they will prove nothing in any meaningful way. If a detainee effectively volunteered key information, advocates of waterboarding, prolonged isolation, etc. will insist torture could have produced it sooner. I’ll look forward to their controlled study. If a detainee gave up the information under torture, critics will insist that it is impossible to know whether he also would have conveyed the same information under other conditions. Just right.

Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody. The debate is about torture and cruelty. And all the arguments that existed about the legality, morality, and efficacy of torture that we had when we had the debate in 2002, and 2004, and 2006, and 2008 and all the years in between – remain the same today as they were last week. So let’s note that the U.S. law prohibiting cruel techniques has been strengthened since 9/11. Let’s recall that there was nothing at all in the President’s speech Sunday night to suggest that this no-doubt defining experience of his presidency has led him to reconsider his standing executive order reinforcing existing prohibitions. And let’s not nudge the blogosphere to see that recent events “reignite” that old, rightly concluded, debate.
Posted 8:12 AM by Deborah Pearlstein [link]

What if Torture Works?

Jason Mazzone

The location and killing of Osama bin Laden could increase popular support for torture as a way to track down terrorists.

Initial news reports indicate that the identification of the compound at Abbottabad resulted from tracking bin Laden's most trusted courier. The identity of that courier was obtained after interrogation of a detainee at Guantanamo produced the courier's nickname. We don't know (and will likely never know) what sorts of interrogation techniques were used to obtain that information from the detainee but it is probably safe to assume the techniques were not pleasant.

Support among Americans for torturing suspected terrorists in order to gain information has varied over time (and depending upon the survey question). One recent study has demonstrated that throughout the years of the Bush administration, a majority of Americans opposed torture; a majority in favor of torture did not emerge until after the first six months of the Obama administration. Consistent with that study, a Pew Center Poll at the end of 2009 found that 54% of Americans agreed that torture is at least sometimes justified to gain important information from suspected terrorists. Perhaps most striking, a Red Cross survey earlier this year suggested a generational divide on the legitimacy of torture, with 60% of American teenagers taking the position that torture is at least sometimes acceptable.

One of the main arguments against torture has always been that it doesn't work. Writing at the Daily Beast in April 2009, for example, a senior military interrogator complained that torture failed to produce information to find Osama bin Laden. But here we are, two years later, and interrogation (enhanced or otherwise) of a detainee unlocked the door that led yesterday to the raid at Abbottabad.

It will be useful to see polling data in the next few months on Americans' views about torture. It's reasonable to imagine that support for torture will increase. One question suggests itself:

Using information obtained through coercive interrogation of a suspected terrorist at Guantanamo, the U.S. military was able to locate and kill Osama bin Laden. Do you believe that torture is justified in order to locate terrorists?

The question is not just useful for pollsters. Everyone who cheered last night's news should decide how they would answer the same question.
Posted 5:24 PM by Jason Mazzone [link]

From Truth to Trust

Frank Pasquale

In my last post, I praised Hernando de Soto's proposal to improve business recordkeeping, or "economic facts." Commenter A.J. Sutter responded that de Soto's "notion of 'economic facts' itself represents a fallacious reification. Those 'facts' are constructed by social actors." Sutter emphasizes the inevitably subjective, contingent aspects of accounting practices. He concludes that "rolling back some [accounting] innovations might be a good idea," but "the recovery of some sort of 'objectivity' is not likely to be the result."

He is in good company; consider, for instance, this dismissal of de Soto's ideas from Annelise Riles's profound and original book Collateral Knowledge: Legal Reasoning in the Global Financial Markets:

Contrary to De Soto's simplistic claim that the very existence of registered property rights produces clarity and certainty about the delineation of powers and obligations (and hence that the only necessary reform of the financial markets is the creation of an adequate registration system for property in derivatives), most of property law is in fact about the enormous ambiguities that surround what powers and obligations flow from titled property ownership. . . .The real issue is whose certainty do you want to maximize, and about what. (164-65)

Both Sutter and Riles are right to criticize anyone who thinks the only, or even the major, "necessary reform of the financial markets is the creation of an adequate registration system for property in derivatives." It is naive to think that, if only we had more information, the crisis could have been avoided. To take but one of many possible examples: even if the analysts at the rating agencies had done far more due diligence on the quality of the loans behind the residential mortgage-backed securities that were sliced and bundled into collateralized debt obligations, they still could have come up with some rationale for a AAA rating. Many understood what was going on, but "danced while the music was playing." To the willfully blind, the naive, or the dense, virtually any arrangement can seem opaque.
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Posted 1:54 PM by Frank Pasquale [link]