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
Preventive detention is a hotly debated topic right now. The media (old and new) is abuzz with controversy over the President’s plan to seek legislation or an executive order authorizing the indefinite detention of suspected terrorists without charge. But the Supreme Court has acknowledged that it’s permissible to detain enemy “combatants” in a war for the duration of hostilities, and Congress has declared war, in so many words, on Al Qaeda and the Taliban. So why is the idea still so controversial? I think the answer lies, at least in part, in the differences between international armed conflict (war between nation states) and non-international armed conflict (war between a nation state and “irregular” non-state forces like Al Qaeda)—and, more to the point, how those differences play out in the public mind, if only at a subconscious level.
The law of war authorizes the detention of prisoners of war for the duration of hostilities without any individualized assessment of dangerousness, but only in the context of international armed conflict. For non-international armed conflict, the law of war recognizes the possibility that detention may occur and requires that such detention meet baseline standards; but it doesn't actually authorize detention, leaving that to domestic law. In Hamdi v. Rumsfeld, the Supreme Court held that the 2001 Authorization for Use of Military Force provided the necessary authorization and incorporated the rule that “combatants” (the Court’s term) are subject to detention for the duration of hostilities.
The U.S. thus has authority under domestic law to apply the same detention rule that the law of war establishes in international armed conflict. The problem with this arrangement is that the rules that apply in international armed conflict are a poor fit for the war we’re actually fighting. Wars against other nations differ from wars against irregular forces, and those differences are at least intuitively understood by the American public and the rest of the world. Three of these differences are crucial when considering the issue of detention.
First, in wars between nations, the class of persons subject to detention for the duration of hostilities is clearly defined, and the people who fall within that class are relatively easy to identify. The relevant definitions (under the Third Geneva Convention) mostly involve membership—i.e., membership in the regular armed forces, militias or volunteer corps, or civilian support units. Determining membership in these groups is a fairly straightforward exercise. Army membership is verifiable in any number of ways, and people are treated as “members” of militias or civilian support units only if they wear fixed insignias or carry special identity cards.
By contrast, five years after the Hamdi decision, there is still no consensus among the lower courts on who is detainable in the current conflict. The courts have struggled to articulate a workable definition of “membership” in Al Qaeda or the Taliban—let alone a reliable means of identifying those who fall within that definition. The “command structure” test adopted in recent decisions is a valiant effort, but it’s necessarily imprecise and bound to be error-prone.
Second, the proviso that enemy forces can be detained “for the duration of hostilities” places a meaningful limitation on detention in the context of international armed conflict. Wars between nations tend to have endings—treaties, formal acts of surrender, or the like. In part, that’s because the resources being spent are those of the country, and few countries are willing or able to continue to spending those resources indefinitely (the Hundred Years War notwithstanding).
A war between one nation and irregular forces in another nation, on the other hand, is much less likely to reach a conventional—or even definable—end. Detention “for the duration of hostilities” in that type of conflict can easily become an effective life sentence. That’s certainly the case in the war against Al Qaeda, where no one either inside or outside the government has yet to articulate a persuasive vision of what “victory” would look like.
In addition to these two distinctions, there’s a third distinction that strikes me as significant—what I think of as the “volitional” argument against preventive detention. The purpose of detaining enemy forces is to prevent their return to the battlefield. In an international armed conflict, members of the opposing nation’s armed forces are generally compelled by the law of their country to fight on its behalf. Abandoning the fight would be desertion, maybe even treason. Return to the battlefield, under those circumstances, is not a matter of personal volition; it’s an externally compelled certainty.
In non-international armed conflict, the situation is quite different. The actions of the enemy forces are usually prohibited, not compelled, by the laws of their own country. Accordingly, for members of groups like Al Qaeda or the Taliban, return to battle is a choice, as is continuing membership in the organization. The available data on released detainees supports that point. By the Pentagon’s own estimate, 6 out of 7 released Guantánamo detainees are not suspected of any post-release terrorist involvement.
Why does this matter? Because the Supreme Court has found preventive detention to comport with substantive due process in only two categories of cases: (1) where there is a clear and imminent end point to the detention, as in the case of pre-trial detention or detention pending removal in immigration proceedings; or (2) where the detained individual is both dangerous and unable to control his or her actions, usually by virtue of mental illness or defect. Indefinite detention based solely on a prediction of future dangerousness—however substantiated the prediction, and however great the potential danger—is considered inappropriate for persons who have the capacity to control their behavior and to conform their conduct to the law. If this analysis were applied to the war setting, it would justify preventive detention of regular army soldiers (who are bound to fight), but not irregular “combatants” (whose return to the battle is a matter of choice).
Of course, the Court is unlikely to apply a substantive due process analysis to suspected enemy fighters captured and held overseas. And thus far, the Court seems perfectly comfortable with a rule that combatants may be held for the duration of hostilities. But the Court’s approach to preventive detention in cases where due process does apply has significance outside its legal context. Like most due process analyses, it reflects a common, baseline understanding of what is fair and appropriate in situations where the government restrains an individual’s liberty. In this case, I think it also reflects a shared understanding of the notion of individual culpability. Put simply, we don’t lock people away for future acts that they may yet choose not to commit. That understanding may give way during times of war, but it doesn’t always give way easily, as we’re seeing now.
Some have argued that the answer is something in between the preventive detention model for prisoners of war in international armed conflict (i.e., detention for the duration of hostilities without any individualized assessment of dangerousness) and no preventive detention at all: a more constrained system of preventive detention, in which the government must prove future dangerousness in each case and the detention is subject to frequent review. Indeed, such a system would be at least partially consistent with the law of war, which authorizes the detention of civilians in international armed conflict under just such constraints. (I say “partially” because international armed conflicts, as noted above, are less likely to last forever.) But I’m not sure it would be consistent with our own concept of due process—specifically, the idea that people who are capable of controlling their own actions should not be subject to potentially endless detention based on predictions of “future dangerousness.” And that’s one reason why the debate on preventive detention is very far from over.
Liza Goitein is the Director of the Liberty and National Security Project for The Brennan Center for Justice