Friday, April 16, 2010

New Directions In Terrorism Policy

Rick Pildes

David Golove

In the wake of Eric Holder’s recent testimony before Congress, and as the Obama administration continues to wrestle with whether to try Khalid Sheik Mohammed before an ordinary or military court, it’s important to recognize the deep source of the ongoing struggle over terrorism policy and law. The question of whether modern terrorism is more like crime or war is the wrong question. And as the incisive constitutional scholar, Alexander Bickel, once wrote, no answer is what the wrong question begets. Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional “laws of war.” While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government’s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government’s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model – like the crime model – was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is “at war” and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.

The war model is also insufficient for a second reason. Pragmatic as it is, the American constitutional tradition accepts that during wartime government has an extraordinary set of war powers it otherwise lacks. At the same time, precisely because of the breadth of those powers, our constitutional tradition has also recognized that deep tension exists between the war powers and the principles of ordinary constitutional government. Much of our constitutional history since has been occupied in efforts to define the proper spheres of these two seemingly incompatible forms of government.

Grappling with this tension in the aftermath of the Civil War, the Supreme Court concluded that the government did not have the power to try an American citizen, captured in the United States for crimes committed here, before a military commission. And from 1867 through today, the United States has not used military commissions to try those captured in the United States, with the exception of a group of Nazi saboteurs brought to our shores by German U-boats and captured shortly after they set foot on our soil. Modern terrorism challenges this idea, of course, by its focus on launching attacks on U.S. soil. Yet to conclude from that ever present possibility that the government’s war powers ought to operate throughout the country is to give too little weight to the side of our constitutional tradition that tries to preserve, even in the face of this reality, as large a role as possible for the mechanisms of ordinary constitutional government.

Prudent White Houses would insist that Congress step up to the plate on these issues and share responsibility. The administration is reportedly now trying to find common ground with some Senators, such as Senator Graham, on a legislative approach. In the meantime, Senators McCain and Lieberman, unhappy that the Christmas day airplane bomber was given Miranda warnings right away, have already introduced legislation to bring greater clarity to the government’s terrorism policies. But their approach is based wholly on the war model; the clarity it provides is purchased at great cost. Their bill would take away any discretion from the President and require that all “enemy belligerents” be tried in military courts – no matter where they are captured, no matter where they committed their war crimes, no matter how high-level an operative or low-level a foot soldier might be involved. As a matter of formal legal power, the bill’s underlying premise might be correct: if the United States has the power to try any enemy belligerent before a military court, it has the power to try all enemy belligerents before such a court (with the exception of American citizens, a context the courts might look at differently). But by treating as irrelevant factors like whether a suspected enemy was captured in the United States, for crimes committed here, this approach gives no weight to the longstanding traditions that seek to keep the government’s extraordinary war powers within boundaries that do as little damage as possible to the commitments of the normal constitutional order.

Morever, while Congress has an essential role to play, it should not command the President to use one court system or the other. Even assuming Congress has the power to command the President in this way, the judgment of which courts to use can implicate military judgments as well as foreign relations concerns – areas that the constitutional tradition has generally left to executive judgment. If a country is willing to extradite a terrorist suspect only on condition that he be provided a civilian trial, for example, the President should have the option of deciding whether that deal serves the interests of the United States. Other legitimate foreign policy considerations are likely to inform the sensitive judgment about how to deal with terrorist suspects in some individual cases. Tying the President’s hands is, at the least, unwise.

The McCain-Lieberman approach seems driven in part by the belief that intelligence or military agencies ought to be able to interrogate captured enemy belligerents for at least a brief period before they are provided Miranda warnings and turned over to law enforcement. But if so, that would amount to the tail wagging the dog. The question of which tribunal should be used to try alleged enemies is separate from the question of whether they should be subject to a brief period of non-coercive military or intelligence interrogation before being turned over to law enforcement and the ordinary criminal process, including Miranda warnings. Should Congress and the White House believe the latter is a desirable option for non-citizens captured here, like the Christmas bomber, Congress can legislate to remove whatever existing statutory barriers, if any, might stand in the way of a two-stage process of this sort. This is exactly the kind of intermediate approach that borrows from both the war and crime models, but that would be on firmest ground if established through legislation.

To the extent constitutional debates would remain about such a system (which might depend on whether incriminating statements from the initial interrogation or their fruits were used at trial), the Supreme Court has always been most accepting of national-security policies the Congress and President have jointly created, rather than ones adopted through unilateral executive action. Thus, the view that alleged enemy combatants should not be given immediate Miranda warnings, as would be the case with the arrest of ordinary criminal suspects, do not justify a congressional prohibition on civilian trials altogether. Instead, they point to an important role that Congress can play. Rather than tying the hands of the President, Congress can act constructively by adopting rules that effectively remove potential fetters on the effective exercise of executive discretion.

In the years since 9/11, it has become clear that neither the war nor crime framework perfectly suits the range of distinct issues modern terrorism raises. That is not surprising: neither framework was constructed with this context in mind. To craft intermediate approaches and institutions on issues like detention, interrogation, and the forum for trials, we need shared legislative and executive responsibility. Frustrating as the American system of separated executive and legislative powers can be, that approach is the one most likely to yield policies with sufficiently broad consensus to be sustainable, in the courts, in the country, and overseas.


This is a most welcome post, especially this recognition:

" ... we need shared legislative and executive responsibility."

which brings to mind Justice Jackson's opinion in Youngstown.

Shag, as I'm sure you know, it's the same thesis Jack Goldsmith argued very persuasively in his book!

I'm sympathetic to this post but it goes too far for me. A red flag pops up when I'm told that citizens "might" be treated differently. They ARE to be. This is so even if some courts "might not" do so.

Also, this goes too far:

"Rather than tying the hands of the President, Congress can act constructively by adopting rules that effectively remove potential fetters on the effective exercise of executive discretion."

Sorry. Under my understanding, "rules" does involve some "tying the hands" sort of things. What is the value of a branch that acts only to "remove" executive limitations. Honestly, that's absurd given what we have seen occur in recent years.

I understand the need for some discretion here. But, there is too much of an undertone of "policy flexibility" here. Sometimes, and this includes non-citizens, the legal thing might be the politically (or even internationally) unpopular thing.

This is a pragmatic argument with some reasonable logic to it. Pragmatism after all needs to be that to be credible. But, it gives too much discretion to the executive. The cite to a book by a reasonable but still conservative legal mind is telling in this regard.

Though I usually agree with Shag and Joe, I don't in this case. I find this post not just unconvincing, but annoying. Most of it consists of unsupported declarative statements about contested factual issues or legal judgments; ipse dixit.

Let's start with some fundamentals. Take this sentence:

Pragmatic as it is, the American constitutional tradition accepts that during wartime government has an extraordinary set of war powers it otherwise lacks.

This is false. Just plain false. From Ex Parte Milligan:

"[The Founders] foresaw that troubled times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great [emergencies] of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority [i.e., the Civil War].” My emphasis.

The Constitutional language itself reinforces this. There's one, and only one, exception when it comes to war time: when, in cases of invasion or rebellion the public safety may require it, habeas corpus may be suspended. We're not facing either situation.

The fact that Congress and the President agree to violate such provisions -- assuming they do -- is irrelevant.

Let me address this in the context of just one sentence (the post being too long to go through sentence by sentence):

the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons.

There's no discussion of WHY those people can't be tried. The inconvenient fact is that, for the most part (maybe for all of them) they can't be tried because evidence was obtained by torture. This means that an entirely new, unconstitutional system is to be established because the Bush Administration committed crimes. Our own misbehavior thus becomes the justification for further misbehavior. This has all the persuasive force of the guy who kills his parents and throws himself on the mercy of the court because he's now an orphan.

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Well, as my comments hopefully suggested, I don't disagree with that sort of thing Mark.

I don't find the whole post bollocks though. The mixture of crime/war, the important role of Congress, etc.

I noted some "discretion" is warranted. Surely didn't mean of basic constitutional norms. But, various rulings of the Supreme Court repeatedly cited some discretion, such as some lag time in habeas cases.

As to war powers, there are some additional powers. Some of the justices at the time of that case, e.g., thought use of paper money or an income tax as a war measure was one.

Also, statutorily, war and (to a lesser degree) declarations of force brings with it more governmental power. The power would not be "necessary and proper" in peace time in various cases.

I don't think necessarily the article was saying that some constitutional change was wrought. And, expansion of power does not remove basic limitations such as habeas corpus. Korematsu is not right just because price controls and the draft might have been.

Well, as my comments hopefully suggested, I don't disagree with that sort of thing Mark.

I know you don't, and the tone of my comment was certainly not directed at you or Shag.

Hopefully this post will attract more meaningful dialogue on the subject. My comment above was perhaps too cryptic. I provided a 3:59 PM comment on Sandy Levinson's 4/14/10 post that referenced:

" ... Barry Sullivan's 'Justice Jackson's Republic and Ours' included in 'Law and Democracy in the Empire of Force' edited by H. Jefferson Powell and James Boyd White. Sullivan's paper is available via SSRN at:

It focuses upon Justice Jackson's opinion in Youngstown in contrast to Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld. Here's a tidbit from the penultimate [my favorite word] of Sullivan's 'Conclusion':

'With little or no congressional action, a president may commit the United States to military actions that set a practically irrevocable course and that may eventually exact costs that can be tallied up only in terms of thousands of lives, billions of dollars, and untold damage to the standing of the nation. This can be accomplished in consultation with a narrow group of advisors, and it may be done in a matter of hours, if not minutes. Moreover, even when actions cannot be so swiftly accomplished, the legitimate need for secrecy in matters of foreign and military affairs can easily be exploited to stifle debate on controversial policies until it is too late.'"

So let's have debate on the imperial and unitary executive, included that suggested by this post, as absent legislative responsibility the executive may become even more imperial and unitary.

When the FBI arrested the eight German saboteurs in 1942 they expected to charge them in civilian courts. Then the DOJ realized that whatever they did in Germany was protected by combatant immunity, and while they had come to the US with the intent to blow up factories, intent all by itself is not sufficient to make a criminal charge. They had been arrested before they had an opportunity to commit a criminal act. In the end, the only crime they could be charged with in civilian court was that, having enter the US at a location that was not a port of entry (paddled ashore from a U-Boat) they had failed as required by law to proceed to the nearest customs office to make a declaration. In 1942 this was subject to a maximum sentence of 18 months.

However, in military court they were convicted of the offense of "crossing lines without uniform", a capital offense for which they were executed. This offense cannot be charged in an Article III court because it does not exist in the civilian criminal justice system. It is exclusively a military offense defined in the laws of war and limited to use by military courts.

An enemy soldier, whether he is a US citizen or an enemy alien, can always be charged in a Court Martial. Under current law, unlawful alien enemy combatants can also be tried before a Military Commission, but lawful enemy combatants or unlawful enemy combatants who are US citizens have to be given a Court Martial just as we provide for our own soldiers charged with comparable offenses.

In 1942 the German saboteurs (one of whom, Huber Hans Haupt, was a US citizen) were tried before a Military Commission instead of a Court Martial so the trial could be held in secret so the German army would never learn what had happened to their people and use that information to correct their mistakes. Today Military Commissions have slightly different rules of evidence because enemy aliens are not entitled to every protection written into the Constitution but the rules for Court Martials assume that everyone has, for example, the military version of Miranda rights.

It is not against the law for an enemy alien to join an enemy army. They commit no crime by enlisting or serving. Traditionally, enemy soldiers are held as prisoners of war for the duration of hostilities. We should expect that in any conflict there will be enemy soldiers who cannot be tried in any court for the simple reason that they have committed no crime.

Thus there are some people who can only be tried in a military court because they have only committed military offenses. There are some people who can only be tried in civilian court because the military has no valid jurisdiction. There are others who have committed both military and civilian offenses and can be tried in either jurisdiction. These distinctions are based on the law and not on anyone's particular preference or some imaginary higher principle. That is why it is silly to legislate as the McCain-Lieberman bill does that someone whose status is determined to be an unprivileged belligerent cannot be charged in civilian court for any civilian crimes. All spies and saboteurs, including the eight Germans in 1942, the two Germans in 1945, and Padilla and al Marri in 2002 and 2003 are unprivileged belligerents by their status as spies, yet they are also subject to the concurrent jurisdiction of the civilian court system for civilian crimes and the military court system for military offenses. Legislating a single solution in advance of knowing either the facts or the available charges (or making ideological pronouncements in some other direction) is not a very smart idea.

Mark, I don't see the contradiction you appear to see between what you quote from the topic post and ex parte Milligan, nor how the former quote is false. The quote from the Court cannot mean what it might most naturally be taken to mean out of context, since the Court goes on to say that martial law can be imposed as necessity dictates, which does amount to suspension of certain provisions of the Constitution. Granted, the Court gives a strong view of what necessity amounts to, but they had the option of ruling that nothing could justify martial law. Further, ex parte Milligan is hardly the sum of American constitutional tradition about this, as Joe points out. I think most would agree with the view that the government has extraordinary powers in wartime, beyond the suspension of habeas corpus.

How have you discovered the reason most of the 48 can't be tried? It may be that the evidence against them for any crime is too weak to meet the standard required for trial. I take it your view is that such people, and those who are held because of evidence obtained improperly, should be released. Does it matter whether these people are citizens, and where they were detained?

Then the DOJ realized that whatever they did in Germany was protected by combatant immunity, and while they had come to the US with the intent to blow up factories, intent all by itself is not sufficient to make a criminal charge.

It seems kind of obvious to me that they could have been convicted of conspiracy to blow up factories, at a minimum, unless you think (1) training in sabotage techniques, (2) smuggling large quantities of explosives into the United States, and (3) identifying specific targets to be blown up are insufficient to satisfy the overt act requirement.

"It seems kind of obvious to me that they could have been convicted of conspiracy to blow up factories"

When a soldier engages in military training and planning, his actions are protected by combatant immunity. He cannot be charged with civilian crimes or tried in civilian courts for the things he does as a soldier. When a soldier dresses in civilian clothes and pretends to be a civilian and crosses through your lines of defense on a mission to blow something up, he becomes a spy and saboteur. From the moment he crosses through your lines, he loses his combatant immunity for whatever he does going forward, but does not lose it for the things he already did.

So from the point of view of the civilian criminal justice system he only has intent to commit a crime unless he commits a criminal act after crossing through lines and entering the US. All the overt acts cited above occurred before the Germans changed into civilian clothes. In 1942 the Justice Department determined that the Germans had committed no criminal act in the 7 days they had been in the country before the FBI arrested them.

In terms of modern terrorism there is an alternative calculus. A spy and saboteur can be charged in military court, and here there is no issue of combatant immunity. There is a different problem. An enemy soldier in military court can only be charged with crimes recognized in international law, not crimes defined only in US domestic law. International law allows no concept of "conspiracy". It is not a war crime to train to commit a war crime, to plan to commit a war crime, or even to attempt to commit a war crime. You have to actually commit the war crime. If you are caught first, then you are just a regular POW. In previous wars it did not matter because crossing through lines of defense dressed in civilian clothes is itself a capital offense and in previous wars we have been ready to make the charge.

Of course, after a successful terrorist attack a captured enemy saboteur can be tried in either civilian court as a murderer or in military court as a war criminal.

And a closing word about what I now realize is the McCain Lieberman Domestic Terrorist Protection Act. If a non-citizen in the US decides to commit a terrorist act of mass murder, and then escapes overseas to some place like Afghanistan where he joins the Taliban, fights against US soldiers and is captured, then then Section 4(a) prevents his prosecution by the DOJ for the crimes he committed. Anyone determined to be an alien unprivileged belligerent cannot be prosecuted by the DOJ in any Federal Court for any crime, and the act does not exclude outstanding felonies committed long before he became an enemy soldier. Since the crime was committed when the terrorist was in the US as a civilian, ex parte Milligan precludes a military trial. This bill now also precludes a civilian trial. So the terrorist gets away with murder, although he can be detained as a prisoner of war.

I also resist the thrust of this of this Post's argument: that somehow the President and Congress should jointly (and exclusively?) drive counterterrorism policy based on some to-be-defined mix of war and crime enforcement paradigms.

It's easy to cast each side as extreme to conclude that the answer should be somewhere in the middle. My own two cents is that when folks do this, we should look extra hard at the evidence they marshal in support of their conclusions.

In this case, the argument essentially turns on an emerging "political consensus" in support of the hybrid approach: Congress and the President have made a renewed attempt at military commissions so this must be the way to go. And better rush to set up an indefinite detention regime too before the courts corner the issue.

Yet its interesting to me how divorced the Post is from considerations about 1) the efficacy of competing counterterrorism policy models and 2) the risks of relying on the political process to safeguard human rights and the rule of law.

On the efficacy issue, the Post makes no mention of the relative merits of civilian trials over military commissions in dispensing justice and incapacitating suspected terrorists. Nor does the Post discuss the potential ramifications that indefinite detention of suspected terrorists might have on the capacity to employ the broader gamut of counterterrorism strategies effectively. (Suffice it to say that I'm skeptical of the value of the law of war paradigm on either of these issues.)

With respect to human rights, neither the Congress nor the President has shown that it has the institutional capacity to place a serious premium on maintaining basic commitments to justice and the rule of law. The courts have been the only safeguard, and thank God they're playing a role.

And just one final closing comment. I find it disturbing that the Post overlooks the possibility that U.S. attempts to broaden war powers will be used in the future by States that may be much less interested in a narrow battle against dangerous extremists. The longview here is incredibly important, and its too often ignored.

Joe- I think that the post refers to the McCain-Lieberman bill as tying the President's hands by prohibiting civilian trials. Is that the kind of hand-tying you support?

Overall, the approach advocated in the post strikes me as balanced and reasonable.

Since Howard mentioned the absence of conspiracy as a crime in international law, I thought I'd provide a link to my student note on the issue:

It discusses the conspiracy provision in the MCA of 2009, and considers whether it can be supported under IHL.

From the moment he crosses through your lines, he loses his combatant immunity for whatever he does going forward, but does not lose it for the things he already did.

So wait, bringing a bunch of munitions into the US and hiding them, with the intent to use them to blow up buildings, isn't enough for conspiracy?

I'd appreciate a cite for some of these source materials from 1942 you keep referring to.

Raha, are you unhappy with the post because you think the crime model is sufficient? So, for example, the military shouldn't be involved in seeking, detaining and interrogating terrorists? If that's not your view, and you appear not to favor a war model, it's hard to see an objection to the general conclusion that some mixed model will be necessary, or at least advantageous.

The post is clear that the courts have role to play, so I don't see your objection on that ground. It seems to me the authors do refer to concerns of human rights and practical advantages of each model; nothing in the post excludes such considerations, at the least. What is it you would prefer to what the post actually argues for? Leaving it all to the courts?

Perhaps a Jack Bauer model should be available to the executive?

"So wait, bringing a bunch of munitions into the US and hiding them, with the intent to use them to blow up buildings, isn't enough for conspiracy?"

They paddled ashore in rubber boats wearing their German army uniforms. At that point they were a small invasion party. Since they did not put on civilian clothes and move around as civilians until after they buried the explosives, Justice decided the transport of explosives was covered by combatant immunity. If they had transported the explosives farther than the beach you would have your conspiracy.

"I think that the post refers to the McCain-Lieberman bill as tying the President's hands by prohibiting civilian trials. Is that the kind of hand-tying you support?"

I don't think that is a serious question. Does anyone else?

"The courts have been the only safeguard, and thank God they're playing a role."

Let me first say that I'm very wary of the "war" model in this context. But, in various cases, armed conflict will occur. The fighting in Afghanistan after 9/11, e.g., was not a "war" (no declaration of war) but it was not a "criminal action."

But, I don't agree that the courts alone can safeguard human rights. Their efforts thus far are appreciated, but the continual confinement and mistreatment of them over the years underlines the point. They can do only so much.

The Supreme Court invited this action as Justice Breyer noted in Hamdan v. Rumsfeld. Realistically, much of the immediate power and discretion will rest in the hands of the executive and Congress. If they failed their job, it is to our detriment, because the courts can do only do much.

Hamilton was right on that end.


As a general proposition, I do believe the law enforcement model is sufficient for dealing with the many problems posed by terrorism. As support for this proposition, I would cite studies like Human Rights First's In Pursuit of Justice, which takes an in-depth look at hundreds of terrorism cases prosecuted in Article III courts. The study discusses how these courts effectively disposed of many relevant legal issues including the failure to issue Miranda warnings to suspected terrorists, the risk of disclosing sensitive national security information, and the ability of prosecutors to admit evidence to support their cases.

By contrast, military commissions face serious legal challenges to their subject-matter and personal jurisdiction and are generally seen as a form of second-tier justice, which - in the opinion of those more informed that me - tends to serve as a recruiting tool for al Qaeda.

The same can be said for indefinite detention and targeted killings, although evidence of their deleterious effects on the Obama Administration's ability to successfully combat terrorism is admittedly anecdotal. However, studies have shown that a strategy of "leadership decapitation" is unlikely to be successful in taking down a religiously motivated organization like al Qaeda. See, for example, this interesting study that surveyed the efficacy of such an approach in the counterterrorism context:

Much more could be said on the merits, but I think my problem with the Post was more fundamental than its failure to seriously address the relative merits of a law enforcement paradigm over a war paradigm. The fundamental problem with conceding the applicability of the war paradigm is its potential to erode respect for human rights and the rule of law. Thus unless the war paradigm has stringent and well-accepted limits, the potential for abuse is quite scary indeed.

And, as we have seen, defining the limits of the war paradigm has been quite difficult for Republican and Democratic politicians alike. The latest example is the Obama Administration's willingness to conclude that it has the power, purportedly under the law of war, to assassinate U.S. citizens wherever they may be. I think this example alone is sufficient to place a very heavy burden on those who support the war paradigm to justify why precisely war powers are necessary.

Now, to consider your question: whether the military ought to be involved in seeking, detaining, and interrogating suspected terrorists. As with most difficult questions, the answer depends on the circumstances but in this case it should be presumptively "no" for all the aforementioned reasons. However, I'm willing to consider circumstances that might be appropriate for a military response.

One such circumstance would be if a particular nation-state was harboring or otherwise substantially supporting al Qaeda leadership within its borders and repeatedly refusing to cooperate with U.S. efforts to seek a law enforcement response.

However, this does not seem to be the case before us. And because it does not, I was disappointed that the Post did not seriously address the dangerous erosion that extending the war paradigm into the counterterrorism context could continue to have on basic protections such as the civilian-combatant distinction in IHL and the applicability of human rights law.

To be fair, the Post at least hinted at some of these considerations, as you noted. But as with much the political discourse on these issues, I couldn't help but feel that these important considerations were being put on the back-burner.

Thanks for taking the time to respond to my comment. I hope I've addressed the thrust of your response.


I agree that courts are a necessary, but not sufficient, actor in safeguarding human rights and the rule of law in this context. My only point was that I don't trust the Legislative or Executive branches to do their jobs in this department. Thus I was making the case for a more robust judicial response to counter the Post's suggestion that Congress and the President should take over the business of regulating the indefinite detention of suspected terrorists. I mean, if courts are tasked with anything at all, it most definitely is ensuring that individuals are not unlawfully detained.

Raha, thanks for explaining your position. It's true that anything attached to the war model, as war itself, involves higher risk of violating or minimizing rights, so as much as practical, the criminal model would be preferable. That rule will still require provisions for military involvement in some circumstances, and abridged rights in some cases.

It happens that Jenna Jordan's article was referred to in a post a few days ago. I don't think she makes her case. My comments are here.

The American citizen who has been cleared for assassination is in Yemen, where we cannot rely on civil means to secure his arrest, which would no doubt be the best option. By himself, I don't think war powers would be at issue, but he is viewed as part of a larger war. Initially Al Qaeda was being hosted by the Taliban, who did refuse to cooperate with the US in arresting them, so the war model was a fairly uncontroversial call at that point. Even now, Al Qaeda's leadership is believed to be largely located in areas where no civil authority can be used to root them out, even though the governments might cooperate if they had control of those areas.


You present a forceful counter to Jordan's findings. I'll have to consider your objections more thoroughly when I have some time.

However, even assuming that your objections carry the day, I don't think it follows that we ought to nonetheless employ the war paradigm. For one, folks like Admiral Mike Mullen and Matthew Alexander still provide powerful, if anecdotal, evidence that abuses of the war paradigm promote al Qaeda recruitment. And even if al Qaeda recruitment does not depend in part on whether the United States undertakes the war paradigm, you seem to acknowledge that doing so still has costs associated with the erosion of IHL and human rights norms.

Given this fact, I maintain that the burden is still on the proponents of the war paradigm to show the significant value-added aspects of military commissions trials, indefinite detention, targeted killings, etc. And, again, these measures need to provide, as a threshold matter, counterterrorism security gains above and beyond what the law enforcement models does with its hundreds of criminal criminal convictions (at a roughly 91% conviction rate).

On targeting U.S. citizens, I take your point that the particular target is believed to be in Yemen, but I'm not sure that the legal authority for the targeted killing is similarly confined. I'm assuming that the relevant legal authority here is essentially what Harold Koh outlined at ASIL a couple of weeks back, and I was under the impression that the targeting authority was based on the law of war and had no geographic or temporal restrictions. I could be wrong on this, but if I'm right I think we have a lot more to worry about than a particular decision to target one suspected American terrorist that is roaming free in Yemen.

I also take your point about al Qaeda's tendencies to hang out in weak States generally, and in geographic regions that remain unregulated by central governments. This is a big problem, but I'm not sure it necessarily calls for a response from the U.S. military. One reason for being cautious is that many of these areas - whether in Pakistan or Yemen or elsewhere - are also heavily populated by civilians, even if the central government is not on the scene. Another reason is that the mere presence of al Qaeda affiliates may not be a sufficient threat to justify military action and the associated costs. However, if the threat is significant and imminent enough, I think military action could be appropriate under an Article 51 self-defense theory, which seems like a reasonable enough way to look at this problem in my view.

Thanks again for your thoughts.

Raha, I agree the burden is on those who favor the use of the war paradigm to justify its use. The criminal model is preferable wherever it's practical. I'm all for civilian trials for the detainees wherever possible, including for KSM (whose trial really should be in New York).

On the targeted US civilian, Koh didn't address the issue of citizenship at all, or of al-Awlaki directly, but this part of his remarks surely applies:

"Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses."

I'm sure if al-Awlaki were in Paris, there would be no clearance for him to be killed. He would be arrested. Similarly, after Holder's ill-chosen remarks about Bin Laden not being taken alive it was clarified that it's preferable to arrest terrorists where possible, including Bin Laden.

Thanks for clarifying Koh's comments on targeting killing Sanpete.

Sanpete- are you really sure that if Awlawki were in Paris there would be no clearance for him to be killed? Remember that Awlaki has not been charged with a crime so it is not clear whether there would be any basis for arresting or extraditing him.

MLS, that's a good point. It sounds like the government has grounds for charging al-Awlaki with giving material aid to a terrorist group, or conspiracy, or something that a cooperative government would accept. If not, the grounds for targeting him are probably too weak.

The Yemeni fellow currently in GTMO who worked as a cook for a Taliban regiment because it paid better than work he could get in Yemen lost his habeas case, and his appeal. Peeling potatoes is no crime, and if it was, his 8 years in prison would surely be adequate.

Aside from a very few actual AQ guys in custody, this is what we're talking about when we're talking about detention regimes.

The idea that we need to create a new court system to protect us from kitchen assistants etc should carry a very heavy burden, and one that can only be met based on actual facts, not myth.

No war against AQAP can be "won" without active cooperation from the government of Yemen. This is difficult, because we don't want to get sucked into a situation where the government of Yemen is using us against its enemies where those enemies are not also the enemies of the United States. (And Yemen's government has many enemies). Still, you have to ask yourself whether assassinating this man -- who is only regarded as a significant figure in AQAP in Washington, not Sana -- would advance the cause of cooperation or not.

In this case, I think it's really beyond clear that only a criminal model can work. I've never heard any plausible explanation for how the death of this man, in war, works a advancement of US interests over indicting him, and trying to get him back while extending all the protections and benefits of criminal procedure. In the end maybe it has to be a mix: indictment by civil authorities, and kidnapping by the military.

If al-Awlaki would be a valuable enough intelligence resource they might risk the lives of a team to kidnap him, but otherwise probably not.

Oh, and medics. We need a new court system so we can give medics a life sentence.

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