Post-Acquittal Detention
The other day, Spencer Ackerman reported:
Now obviously there are very important differences between the current "war on terror" and a traditional armed conflicts. But in the Hamdi case, the Supreme Court did hold that the AUMF implicitly granted the President all the detention powers traditionally incident to a declaration of war. Thus the president could hold Hamdi, a U.S. citizen picked up while fighting for the Taliban, as a combatant. Personally, I think the Court decided Hamdi incorrectly, but it is the law of the land. Which means that if we had tried Hamdi on terrorism charges and he had been acquitted, we would still have been able to hold him as a combatant based solely on his membership in the Taliban (at least until the war in Afghanistan is over--and assuming such membership could be proven).
Now whether the Court's ruling in Hamdi extends to al Qaeda members (as opposed to members of the Taliban) or to people picked up outside of the battlefield are questions the Court has yet to address. But given the scope of the AUMF and composition of the Court, it is entirely possible (maybe even likely) that the Court would find that the detention authority recognized in Hamdi extends to any al Qaeda member. And if so, the president would have the authority to detain an al Qaeda member as a combatant even if that person was acquitted of criminal charges. Such detention would not be based on any past crimes, but on the person's membership in the al Qaeda organization (again, assuming such membership could be proven).
As ill-suited as I believe traditional law of war concepts are to the likely never-ending war against al Qaeda, the fact is that the Supreme Court has--to this point--shown a willingness to apply them. And Jeh Johnson's testimony--sadly--reflects a perfectly plausible reading of the current state of the law, as expressed in Hamdi, particularly with respect to any detainees picked up in Afghanistan or Iraq. As much as I would like the Obama administration to move away from the law of war paradigm, I'm not sure how realistic it is to expect them to distance themselves or take very narrow readings of existing authorities, like those recognized in Hamdi.
I think the true test of the Obama administration will be whether and under what circumstances it chooses to hold detainees based solely on their status as "combatants." Will it reserve this power in name only? Will it limit its use to people who, like Hamdi, were captured on the battlefield? Will it claim that its detention authority is limited to the duration of the wars in Afghanistan or Iraq, or to the never-ending "war on terror"? What sort of process will it afford detainees to challenge their designation as combatants? Will it seek Congressional approval for such detention or rely solely on executive order? If someone is acquitted of criminal charges under circumstances that make it clear that the jury did not believe he was a terrorist at all, will the Obama administration assert that he is a terrorist nonetheless?
In the days, months, and years to come, there will be many tests, many opportunities to judge the Obama administration's respect for civil liberties and for basic American ideals of justice and due process. Based on its record so far, I fear that the administration will fail many of these tests (indeed, it already has failed a number of them). I don't think, however, that the post-acquittal detention authority claimed by Jeh Johnson should, in itself, be read to be more than a restatement of holding of Hamdi.
UPDATE: Adam Serwer has a good, balanced piece on this subject over at The American Prospect. Well-worth reading. His bottom line is that, while post-acquittal detention may be legal in many cases, it would be highly problematic to actually use such a power in the context of the current war on terror. I completely agree.
Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”This testimony provoked a strong reaction from the ACLU and from much of the liberal blogosphere. Glenn Greenwald wrote:
Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee. That's one of those propositions that ought to be too self-evident to need stating.I agree completely with this statement, but I'm not sure that it's a fair characterization of what Johnson was saying. Johnson was pointing out that the basis for detention upheld in the Hamdi case is rooted in the law of war. It is based on a detainee's status as a member of enemy forces, not on whether he is guilty of any crimes. Over at Balkinization, Deborah Pearlstein offers a helpful hypothetical to illustrate this distinction:
The technical answer is clear if one imagines for a moment we’re in the midst of a modern World War II – a classic international armed conflict, in which it is entirely possible that war crimes will be committed; in which the United States’ authority to hold, say, prisoners of war, is undisputed; and in which the United States has in all instances scrupulously carried out its obligations under the Geneva Conventions and other relevant law. The U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians. Under current law, we could detain the soldier until the end of the armed conflict without trial (provided we continued to treat him in compliance with Geneva and any other relevant laws). But it’s looking increasingly like the armed conflict may end before next year. And if this guy is really guilty of war crimes, he deserves to be in custody (under a criminal sentence) for far longer than that. So we try prosecuting him. Unfortunately, some key witnesses end up refusing to testify at trial, and the soldier is acquitted. Also unfortunately, the war continues to drag on. Could we go back to holding him as a POW? I’d welcome correction, but I’m not aware of any international law bar to continued POW detention under those circumstances.This is clearly right. The basis for holding a combatant has nothing to do with criminal conduct. Under the laws of war, you can hold a combatant until the end of hostilities in order to prevent him from returning to the battlefield.
Now obviously there are very important differences between the current "war on terror" and a traditional armed conflicts. But in the Hamdi case, the Supreme Court did hold that the AUMF implicitly granted the President all the detention powers traditionally incident to a declaration of war. Thus the president could hold Hamdi, a U.S. citizen picked up while fighting for the Taliban, as a combatant. Personally, I think the Court decided Hamdi incorrectly, but it is the law of the land. Which means that if we had tried Hamdi on terrorism charges and he had been acquitted, we would still have been able to hold him as a combatant based solely on his membership in the Taliban (at least until the war in Afghanistan is over--and assuming such membership could be proven).
Now whether the Court's ruling in Hamdi extends to al Qaeda members (as opposed to members of the Taliban) or to people picked up outside of the battlefield are questions the Court has yet to address. But given the scope of the AUMF and composition of the Court, it is entirely possible (maybe even likely) that the Court would find that the detention authority recognized in Hamdi extends to any al Qaeda member. And if so, the president would have the authority to detain an al Qaeda member as a combatant even if that person was acquitted of criminal charges. Such detention would not be based on any past crimes, but on the person's membership in the al Qaeda organization (again, assuming such membership could be proven).
As ill-suited as I believe traditional law of war concepts are to the likely never-ending war against al Qaeda, the fact is that the Supreme Court has--to this point--shown a willingness to apply them. And Jeh Johnson's testimony--sadly--reflects a perfectly plausible reading of the current state of the law, as expressed in Hamdi, particularly with respect to any detainees picked up in Afghanistan or Iraq. As much as I would like the Obama administration to move away from the law of war paradigm, I'm not sure how realistic it is to expect them to distance themselves or take very narrow readings of existing authorities, like those recognized in Hamdi.
I think the true test of the Obama administration will be whether and under what circumstances it chooses to hold detainees based solely on their status as "combatants." Will it reserve this power in name only? Will it limit its use to people who, like Hamdi, were captured on the battlefield? Will it claim that its detention authority is limited to the duration of the wars in Afghanistan or Iraq, or to the never-ending "war on terror"? What sort of process will it afford detainees to challenge their designation as combatants? Will it seek Congressional approval for such detention or rely solely on executive order? If someone is acquitted of criminal charges under circumstances that make it clear that the jury did not believe he was a terrorist at all, will the Obama administration assert that he is a terrorist nonetheless?
In the days, months, and years to come, there will be many tests, many opportunities to judge the Obama administration's respect for civil liberties and for basic American ideals of justice and due process. Based on its record so far, I fear that the administration will fail many of these tests (indeed, it already has failed a number of them). I don't think, however, that the post-acquittal detention authority claimed by Jeh Johnson should, in itself, be read to be more than a restatement of holding of Hamdi.
UPDATE: Adam Serwer has a good, balanced piece on this subject over at The American Prospect. Well-worth reading. His bottom line is that, while post-acquittal detention may be legal in many cases, it would be highly problematic to actually use such a power in the context of the current war on terror. I completely agree.
posted by A.L. at 8:51 PM
14 Comments:
Too narrowly construed, I think -- or too broadly, depending on which end of the telescope you're looking through.
Since these folks didn't wear uniforms, and many are eitherc itizens of countries not presently on our list of enemies, or for one reason or another, have been stripped of any nationality at all, it ought to be a requirement, I should think, to either prove that they were shooting at U.S. forces, or traveling with those who were, if you wish to detain them legitimately under the laws of war.
Further, as you yourself point out, if our government intends these wars to last forever, as it apparently does, should merely being in a place where Americans are pleased to go, invited or not, automatically confer a sentence of life with a hefty dollop of torture on a person? If the law supposes that it should, the law is just what Mr. Bumble said it was.
Then there's also the fact that some of these supposed POWs were twelve years old, or picked up far from any battle area, or sold to U.S. forces by village rivals, etc., etc. Talk about fruit of the poisoned tree!
However unclear the law may be, the fate of these men is very clear -- misery beyond measure and beyond time, perhaps even death at our hands. People who put on robes ought to consider that first, not last, and assuredly not just when it's convenient to their own peculiar rationality.
You use the example of a uniformed soldier captured and held as a POW, then charged with rape and murder and unfortunately cleared of the rape and murder, continuing to be held as a POW.
But we're talking about detainees not in uniform captured as putative terrorists being tried to see if they are terrorists, being found not guilty of terrorism, and then being held despite being found not guilty of terrorism.
That's hardly the same thing.
If I get really angry with my neighbor, angry enough that I label our dispute a "war," does that give me the right to imprison him?
Our government has gone berserk with its spurious use of definitions, and Obama is showing that he is as prone to that as his predecessor was.
That we are even pondering government authority to detain people based on an unofficially declared "war on terror", a.k.a. a marketing slogan for an armed assault on a human emotion, should shock our senses as Americans.
This "beacon of light" is conducted by both our hawks and our doves in government and should evoke shame, disgust or at least disrupt our regularly scheduled programming for a moment of collaborative community retrospection.
We have learned to applaud jingoism, divisiveness and anti-intellectualism as a society. We are also the most developed nation the world has ever known, at least in terms of industry, militarization and personal comfort.
Mr. Timberman, we are trapped inside the looking glass trying to find a way out. Some of us at least.
But we're talking about detainees not in uniform captured as putative terrorists being tried to see if they are terrorists, being found not guilty of terrorism, and then being held despite being found not guilty of terrorism.
Not necessary. Johnson's remarks were pretty vague. Say, for instance, that you have an accused terrorist who was picked up while fighting alongside the Taliban in Afghanistan. He's then tried and acquited on terrorism charges, but the president neverthless believes he will return to the battlefield and fight with Taliban. Under Hamdi, the president would have the authority to detain that person as combatant, assuming he can prove his status as a Taliban fighter.
On the other hand, if you have an accused al Qaeda terrorist picked up in, say, Yemen who is acquitted of charges that are very broad, making it clear that the jury did not believe there was sufficient evidence that he was terrorist. Well, that's a very different scenario. If the Obama administration were to assert its authority to hold such a person as a combatant, even after acquittal, I think that would be making a mockery of due process. Unfortunately, I fear that even that scenario might be upheld by the Court.
malcontent,
As much as I despise the "war on terror" construct, Congress did in fact pass the AUMF, which gave the president broad military authority, and the courts have held that to be the equivalent of a declaration of war (see, Hamdi).
As Jayhawk points out, likening the situation with one where the opposing forces wear uniforms is nonsense.
You require that membership in AQ would have to be proven.
How?
I don't know about you, but I have a suspicion that signed "applications" supposedly found by American intelligence could be manufactured with trivial ease by unfriendly third parties, the CIA or military intelligence and conveniently "found".
If you read the article Glenn Greenwald linked to yesterday on McClatchy, you will see an example of a person who, by the testimony of very trustworthy people (including members of the Afghan government), was imprisoned by the USA for 6 years on a falsehood.
Simply put, how does one prove one is not a member of AQ if some other person says that you are?
C2,
You're preaching to the choir. I absolutely agree. I just think that while these distinctions are critically important, they have not (at least yet) be recognized as important by the courts.
I believe that you are giving the Obama administration an unbelievable amount of slack here. If in 2004, in the wake of the Hamdi decision, the Bush defense department had come out with an identical statement, would you have been so willing to give the benefit of the doubt? If Obama does assert this right, what happens if someone like Sarah Palin or Mitt Romney is elected president in 2012? Would you be holding your breath for Palin's "real test?"
Walter,
I'm pretty sure the Bush DOD did say similar things in the wake of Hamdi. That's why Hamdi was troubling. But the troubling part was the case, not administration officials repeating what the case said.
There are a number of areas where the Bush administration went well beyond what could be supported by the case law. This, sadly, isn't one of them.
What was more troubling to me about the Bush administration's approach to detention was their denial of all process to those who they chose to label as combatants. If someone is labeled a combatant, under Hamdi, he should at least be afforded a robust opportunity to challenge the basis of that designation, i.e., to prove that he is not in fact a combatant.
One assumption here is that the "combatants" are held as POWs, with full Geneva rights. But they're not. Right?
It seems like we are abdicating our international treaty obligations by using the AUMF as a declaration of war. I appreciate the creativity applied to address the asymmetrical nature of this never ending series of skirmishes but as more and more time passes, it seems that this is not warfare so much as it is an organized international criminal enterprise.
We have realized far too much destruction and blind obedience to let it continue without an explicit strategy to address future incidents as such.
I can't even see the other side of this issue, only diagnose it.
To make the criminal justice system the offeror of keys to a door that never opens is hypocritical on the surface, but it's far worse.
The DOJ can craft indictments each of which includes in effect the entire cassus belli as-applied to the named defendant. That should be obvious. It won't however admit this because it is trying to have it both ways: see it as pretty much a war, making criminal trials beside the point; and see it as pretty much a police action, in which case trials are to the point.
It can't be pretty much both, except in the land of which Kafka wrote. That's not how "pretty much" works.
They've got to choose which one is their model. It's a SOGOTP situation. Obama thinks he has a fresh start because he's not Bush. He should guess again. After all the torture and renditions and judicial procrastination and weasely wording, there's no such thing as a fresh start.
Still at school. Pathetic.
Re the update:
Red Queen theories of justice may seem balanced to lawyers, but those who find themselves at the pointy end know better.
Power excuses itself, and uses whatever means are placed at its disposal to do so. If lawyers choose to serve power rather than justice, all I can say is Woe to that man by whom the offense cometh.
I generally agree with this blog, and I wholeheartedly condemn the government's torture of people in custody. About post-acquittal detention, of course that's not good. But unfortunately, I'm afradi we really need to play devil's advocate and think about the issue of jury nullification. What if a jury decides to acquit a person who is obviously a dangerous terrorist, with terrorist connections, and the ability and motivation to harm many people? Do we just let them walk out the door? I'm sure lawyers are used to "imperfect results", and I think that's usually a reasonable viewpoint. But I can understand why in the case of foreign combatants, jurty nullification might not be an acceptable outcome. So what do we do? I'm not saying I know the answer, and I'm not saying I approve of the Bush Administration's approach. But I'm afraid this is a legitimate question.
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