Sunday, May 09, 2010

More on "Melded" Approaches to Counterterrorism Policy

Rick Pildes

The Washington Post has a thoughtful editorial today suggesting new directions in terrorism policy. Whatever one thinks of any of the specifics suggested there, the general approach seeks to reject an either-or-choice between the "crime" or "war" approaches and instead to develop intermediate structures that are functionally sensitive to the unique problems terrorism poses while remaining true to traditional rule-of-law values. That framework of thought is much in the same spirit of the effort David Golove and I have been pursuing (see here and here) to develop intermediate approaches that resist the all-or-nothing, "war" or "crime" debate that for too long has polarized discussions of counterterrorism policies. Ken Anderson has called our approach a "melded" one. Today's Washington Post editorial suggests that more and more thought is gravitating toward these melded positions.


When someone commits a crime that violates both Federal and state laws, we do not create a hybrid court to try them or an intermediate unit to investigate. Neither do we establish in advance of the facts in the individual case some rigid rule about which jurisdiction goes first.

The same sensible approach should apply when someone is potentially subject to military and/or civilian jurisdiction. The military can investigate using military procedures and the DOJ can investigate using conventional criminal rules. There can be joint operations, just as the FBI and state police cooperate on occasion, but the distinction between DOD and DOJ should remain at all times.

Each context has a complete package of specific rules. In a criminal investigation, a suspect has to be provided with a lawyer if he asks for one. In military law, an enemy combatant is not entitled to a lawyer at any time, but he cannot be compelled to provide any information other than his name, rank, and serial number. The problem with "hybrid" or "melded" approaches is that investigators, congressmen, and commentators inevitably assume that you can simply select the most favorable individual rule from either system and combine them into a process that is most favorable to the government.

While a Military Commission trying a alien enemy combatant is not required to apply rules against self-incrimination or completely follow the domestic rules that derive from the confrontation clause (because the constitution does not apply to non-resident aliens), they should only be able to bring charges recognized under international military law. Yet there is a strong argument to be made that Congress improperly authorized Military Commissions to try certain charges that are only found in US domestic law.

So while "joint" investigations followed by separate specific prosecutions makes sense, "hybrid" or "melded" procedures must be carefully defined. You don't need a new policy to do joint operations. John Walker Lindh, Jose Padilla, and Ali al Marri were all held in military custody for a while, then released to be tried or plead guilty in civilian court. Padilla, al Marri, and the German saboteurs of 1942 were all originally arrested and held in the civilian criminal justice system for a period before being turned over to the military after their combatant status was determined. However, at each step each jurisdiction rigorously followed its own rules rather than adopting hybrid or melded rules.

If you have an actual domestic terrorist who did not join an enemy armed force overseas, then calling him a "terrorist" does not provide the legal basis to adopt anything other than a conventional domestic constitutional law enforcement approach. The words "terrorism" and "terrorist" should be banned from any sensible discussion of legal process. Shahzad is accused of attempted murder and building and trying to detonate a bomb. If he was an enemy combatant because we discover that he joined the regular armed forces of a non-state enemy engaged in an armed conflict with the US during one of his trips to Pakistan, then he is a "saboteur" under international military law. In neither the criminal justice system nor the military system is there a useful crime of "being a terrorist". So while the US needs a policy for counterterrorism, once you get past intelligence and strategy part and enter either the civilian or military formal legal system, the "terrorism" part goes away and it has no proper role in a discussion of proper legal process. If by the time you get to court the investigators from that branch of government have failed to follow the normal rules set down by that branch, then the prosecution is screwed up. However, a proper military investigation of a potential enemy combatant should have no effect on subsequent civilian criminal charges, just as the civilian investigation should have no effect on military charges.


I would contend that the "melded approach" is simply the inevitable migration toward the "war approach" in order to address the realities of a genuine war.

The misgivings about "indefinite detention" were the first to give way to the responsibility of governance as Obama designated the core Gitmo detainees as unreleasable and stopped taking captured prisoners to known facilities where self appointed lawyers could ask a court to intervene. This conversion to the "war approach" hardened when dozens of detainees released under the prior Administration returned to the fight, often to command positions.

The internal contradiction between advising a wartime enemy that he has a "right to silence" and then attempting to interrogate him for intelligence is becoming apparent to even the Obama DoJ. After being justifiably excoriated for failing to timely interrogate the Christmas bomber, Justice has now latched onto a rather questionable interpretation of the pubic safety exception to Miranda. This exception will expand when they capture a SERE trained terrorist rather than an amateur who is eager to brag about his exploits.

Similarly, the opposition to the use of coercive military interrogation (not torture) to gain intelligence will give way when we capture SERE trained enemies as we did in 2002 rather than these amateurs. Or maybe when the enemy succeeds in killing a few hundred Americans in a place like Times Square.

The likely end result of the melded approach will be a war approach applied by a mixture of civilian and military authorities.

While I do not disagree with the previous comments, I fear another result of a "melded" policy: Wartime personal intrusion (censorship, area searches, broad spectrum surveillance) without Constitutional rights, and law enforcement actions (focus on specific individuals, deterrent patrolling) without the protection of the laws of war. The worst of both world from the perspective of civil liberties. Use of techniques of combat where we live and of law enforcement where the enemy hides, based on short-term measures of effectiveness. It appears we have already decided that the laws of war do not apply to the War on Terror, only those pragmatic constraints on our actions that we see fit to implement. Now civil rights are to be inapplicable as well? This make invidious, stealthy oppression much too easy.

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