an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Acquitted "Terrorists" and the Court of Public Opinion
What will happen to Guantánamo detainees who are tried and acquitted?
This question has now arisen in two consecutive Senate committee hearings on the fate of the detainees. Three weeks ago, when Senator Martinez (R-Fla) posed this question to Defense Department General Counsel Jeh Johnson, Johnson responded that the U.S. could invoke the 2001 Authorization for Use of Military Force to continue to hold detainees after they were acquitted. I wrote about this Alice-in-Wonderland concept of justice here.
A somewhat different solution was posited in Tuesday’s hearing of the Judiciary Committee’s Terrorism and Homeland Security Subcommittee. When the minority witness, Michael Edney, raised the specter of acquitted detainees being released on U.S. soil, other witnesses (who were not from the administration) responded that the Attorney General could invoke immigration law to detain these individuals, indefinitely if need be, pending deportation. The Supreme Court hasn’t signed off on that approach, but the witnesses’ testimony gave Subcommittee Chairman Senator Cardin (D-MD) enough assurance to declare that “terrorists are not going to be released into the United States.” His statement echoed the sentiments of most of his fellow members of Congress, who evidently believe this is the view of their constituents.
Unfortunately, no one addressed this question: what makes an acquitted detainee a “terrorist”?
We don’t generally refer to people who have been acquitted of criminal charges as “criminals.” To be sure, people who commit crimes sometimes escape conviction. But our default presumption is that an acquitted person is exactly what the jurors pronounced him or her to be: “not guilty.” That presumption should be even stronger here. Most Americans are exceedingly unlikely to give the benefit of the doubt to people accused of ties to Al Qaeda. If twelve people unanimously conclude that there is insufficient evidence to convict an accused Al Qaeda supporter of even the most tangential and vaguely worded terrorism offense (such as “material support” for terrorism), what basis is there to consider the person a terrorist?
No one outside the government and a small number of lawyers has seen the actual evidence against the detainees. There is, then, only one possible reason why so many people assume that even detainees who win acquittals are likely to be terrorists nonetheless: the government says so.
Never mind that a shocking number of the detainees were sold to allied forces by rival tribesmen or peasants desperate to escape their own grinding poverty. Never mind that some detainees’ “confessions” were obtained by torture at the hands of foreign governments and even the U.S. Never mind that courts have overturned the government’s designation of “enemy combatant” in 26 out of the 31 habeas cases heard thus far. And never mind that “intelligence”—that shadowy information on which the government relies in so many of these cases—is often cobbled together from sources of unknown reliability and has proven wrong on many a historical occasion. None of these facts can override the assumption that if the government says that someone is a terrorist and detains him for several years on that basis, he must be a terrorist—regardless of what the courts ultimately hold.
This assumption is disturbing on at least two levels. The main problem with the previous administration’s detention policy was that the executive branch’s label of “enemy combatant” served as accusation, trial, and sentence all in one. In the court of public opinion, that’s apparently still the case. It’s certainly a good sign that the Obama administration, members of Congress, the media, and the public are calling for congressional and judicial oversight for executive detention decisions. But if these same people are convinced that the executive branch’s assessment is conclusive factually (if not legally), how strong can their commitment to reform really be? In particular, what is their incentive to insist on legal procedures that rigorously test the government’s assertions? It’s no surprise, under these circumstances, that the revised military commission system passed by the Senate and supported by the administration still lacks core protections for defendants.
The second problem follows from the first. When the government has already convicted someone in the court of public opinion, it affects that person’s ability to receive a fair trial in an actual court, regardless of the sufficiency of the court’s legal procedures. Accordingly, in ordinary criminal proceedings, ethics rules prohibit prosecutors from making public statements (beyond the mere fact of the indictment) that would prejudice the potential jury pool against the accused. In this case, the government has not only repeatedly referred to the Guantánamo detainees as “terrorists,” it has reinforced this assessment by imprisoning them for years on end. Under those circumstances, it becomes much harder to find people who are willing to conclude what must surely be true: that some of the detainees are innocent of the charges levied against them.
Mr. Edney thus need not lose sleep over the specter of acquitted detainees roaming the streets of the U.S. Instead, he should give some thought to whether detainees who are innocent will be able to obtain the acquittals to which they are entitled, given that our leaders have so effectively branded them as “terrorists.” Now that’s a problem that deserves a hearing.