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Thursday, January 19, 2006

Some thoughts about criminal prosecution versus military force in the war on terrorism, with shameless plugs

Most of my recent academic writing has been on constitutional law issues arising out of the war on terrorism.  A short summary of my view is that the congressional Authorization to Use Military Force empowers the President to employ military force permissible under international law, against those entities designated by Congress as the targets of such force.  As such, while criminal prosecution might be another appropriate means of pursuing the perpetrators of the 9/11 attacks, the President need not choose that path.

But there are some crucial consequences of the President's choice of the war model rather than the prosecution model.  Criminal law exists to allow us to punish those who are culpable -- generally through imprisonment, but possible also through execution.  (Whether the death penalty is constitutional, or even a good idea is a different matter that I'd like to put aside.)  Because punishment is so grave, we provide the defendant with numerous procedural rights (counsel, no self-incrimination, presumption of innocence, the government's burden of proof beyond a reasonable doubt).

Military detention does not impose such high hurdles on the government; during World War II, for example, no one would seriously contend that German POWs were entitled to counsel, or even status hearings.  On the other hand, unless the soldier was convicted of committing a war crime, the captured soldier could be detained only for the purposes of preventative incapacitation, not punishment.  Thus, the Geneva Convention now describes conditions of confinement for POWs that are much more generous than your typical prisoner gets.

The problem with this analysis as applied to the current war on terrorism, of course, is that the war model doesn't fit perfectly, since we are not dealing with another nation-state or even guerrillas who are spontaneously defending their own homeland.  Even more of a problem is that the combatant status of detainees becomes crucial in a way that is not the case with your traditional war.

That is, during WW II, if you capture a bunch of guys in German uniforms, there's really no need to hold any kind of hearing on whether they're German soldiers.  You detain them and treat them as POWs, and that's the end of the story.  A hearing would most likely be pointless, since the persons the detainee would want to call as witnesses would be enemy aliens, and we're not in a position to subpoena such persons.

This is consistent with the Geneva Convention Relative to the Treatment of Prisoners of War, which addresses status only in the context of a detainee's entitlement to the presumption of POW status absent being stripped of such status by a competent tribunal.  See Art. 5. 

That focus on POW/non-POW status is appropriate for the kind of conflict envisioned by the Geneva Convention, but works less well in this conflict, where the difficult status question is of combatant status, and not POW/non-POW status.  In other words, a member of Al Qaeda is generally conceded not to deserve POW status because Al Qaeda is not a signatory to the Convention and because it does not conduct its fighting within the rules of war (see this paper by Human Rights Watch, end of part 4), so if we know a given detainee is a member of Al Qaeda, there may not be doubt as to denial of POW status.

But . . . the tricky part is knowing whether the person is indeed a member of Al Qaeda.

After the Court decided Rasul v. Bush in 2004, the Dept. of Defense issued guidelines establishing Combatant Status Review Hearings.  Whether these hearings were adequate is an interesting question that was working its way through the federal courts; it remains to be seen whether the Graham Amendment will terminate those cases.  (For more on that, see this post by Prof. Vladeck.)

It strikes me that in the absence of adequate status hearings -- and again, I don't mean to take a position here on whether the CSRH are or are not adequate (but did address some thoughts on them in this article) -- it's very difficult to decide questions such as whether the AUMF authorizes the President to detain militarily American citizens arrested in the United States.  Not impossible, and I suspect that Prof. Vladeck would conclude that the answer is that this AUMF does not go that far, and perhaps no AUMF could, constitutionally, regardless of how adequately a detainee's status is determined.  But I suspect that others would be much less troubled by military detention of an American citizen, even one arrested in a federal correctional facility (as Padilla was) if we knew that the person had been demonstrated satisfactorally (to whatever the appropriate standard is) to be a person indeed covered by Congress' description of the "enemy" in the AUMF.  In other words, if Congress tells the President that he can use military force against "those organizations . . . " responsible for the 9/11 attacks, and the government shows that a given person is a member of that organization, it maybe isn't implausible to say that the person can be detained for the duration of hostilities.  (How long?  Interesting question, since this isn't like a traditional war; I take a stab at that question in this article.)

The upshot is that military detention should be a viable approach to dealing with persons who fall within the definition supplied by Congress as to the enemy, even if prosecution could also be used, but one can't simply graft the 20th century concept of war onto this conflict with making appropriate and necessary adjustments to take into account the important differences that arise when one fights non-state actors.  At the top of the list of things to think about should be how we go about ascertaining a given detainee's status as falling within or without the scope of the AUMF.  What sort of hearing should the detainee get?  Who should be the decisionmaker: a military officer, military judge, civilian, or Article III judge?  Should the detainee get counsel?  Who should carry the burden of proof, and what should the burden of proof be?  What access to classified information should the detainee get?  (As a final bit of shameless self-promotion, I try to answer some of these questions as a matter of U.S. law, not international law, here.)

These questions would go a long way toward settling some of the concern over the government's treatment of Jose Padilla.  If the government had the burden of proof and failed to carry it with regard to him, then military detention would no longer be justified and he would have to be released or prosecuted.  (Note that the government is now proceeding with prosecuting him, but there is no indication that if he is acquitted that he won't be subject to military detention again.)  On the other hand, if the government carried its burden of proof and showed, let's say, that he is a member of Al Qaeda and sought to attack the U.S., it would be more plausible to say that he should be detained as an enemy fighter.

Absent such a status determination, though, arguments about whether his detention can be justified often cannot avoid assumptions of culpability or lack of culpability, which in turn can color one's judgment about the justifications.

Posted by Tung Yin on January 19, 2006 at 04:22 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink


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Re whether the GITMO detainees should have due process rights, I believe that they should. I think Eisentrager was basically right, though perhaps relying on a technically nit-picking understanding that the state of war between the U.S. and Germany did not formally end until 1952 (by statute). In the last article that I linked in the main post, I argue that Eisentrager is best understood as an application of the "enemy alien" disability rule, and not as a complete denial of the applicability of the Fifth Amendment outside the United States.

Because the GITMO detainees are not "enemy aliens" in the sense of being citizens of nations declared by Congress to be enemy sovereigns, the disability rule -- prohibiting them from accessing our courts -- is not applicable.

Posted by: Tung Yin | Jan 20, 2006 10:04:03 PM

Marty, how does Padilla's case demonstrate the problem? If the government didn't have the degree of certainty at the time, as you'd require, but now does, why doesn't that pose a problem for your position, rather than the government's? Your view of it seems entirely counter-intuitive. It would be a different case--and one that might illuminate a problem--if we now knew that Padilla in fact was not meaningfully associated with al qaeda, based on interrogations, etc. But a confirmation of his association by KSM can't help but be meaningful, and suggests that his initial detention was entirely justified.

Posted by: anon | Jan 20, 2006 8:48:54 PM

Here is a simple problem. The most basic Consitutional right of citizens is the right to remain silent and say nothing that can be used against them in a court of law. The most basic requirement of Geneva is that a soldier when captured must give his name, rank, and serial number or be declared an unlawful combatant. This is particularly important in areas like Afghanistan where military uniforms are customarily not used. However, by identifying yourself as an enemy soldier you provide the evidence that could be used in any court hearing on whether you are being properly detained. Up to this point, the two do not conflict because there is no "court of law" in the processing of a POW. However, if you formally introduce a court procedure as part of the POW induction, then an enemy soldier who is a US Citizen now faces a clear conflict between his obligations under Geneva and his rights under the Fifth Amendment. It might be argued that being a POW isn't a criminal charge and therefore doesn't fall under the Fifth, but then there is the nasty question of charging US Citizen enemy soldiers with Treason.

Posted by: Howard Gilbert | Jan 20, 2006 11:18:04 AM

When Padilla was arrested the US knew he had been a member of the Al Qaeda military because we had his enlistment papers. There is every reason to believe that he disclosed everything in the month before he was transferred to military custody. At that point he could not be arrested for plotting to blow up a building because he was a solider who had been assigned that mission by the third highest ranking mililtary officer in Al Quaeda (KSM). You can't criminally charge a soldier for planning to blow up a building any more than we would tolerate a US pilot being criminally charged by an enemy for planning to drop a bomb and blow up buildings. Once the US claimed he was a soldier, and that has alway been the claim from the first day, then military custody was required by US practice and international law. Only by contesting his claim to miltary status can you can make a case for a criminal charge.

He was held without external contacts so that nobody could warn KSM of all the information that he had given, which may have been used to capture KSM 9 months later. There is no evidence to support the claim that anything improper was done during _his_ interrogation. The "virtual dragnet of persons, including U.S. citizens arrested in domestic airports" involved one man, Padilla, who by his own admission worked for six months directly for the military head of Al Quaeda, Mohammed Atef, and the after his death was eventually transfered to Atef's successor, KSM. That isn't a dragnet, it is pecise targeting that turned out to be right on the mark.

Posted by: Howard Gilbert | Jan 20, 2006 8:07:23 AM

Tung (and Steve): I think you've put your finger on something important. Whether or not Congress *did* authorize it, I think it's fair to assume Congress *would* authorize the military detention of U.S. citizens interdicted in the U.S. *if* there is (i) a fairly high degree of certainty (ii) *at the time of interdiction* that the person involved is (iii) meaningfully associated (iv) with the "military" arm of Al Qaeda. But the devil is in the details of those qualifiers. And Padilla's own case demonstrates the problem.

Let's say, purely for sake of argument, that Padilla was, in fact plotting with Al Qaeda to bomb U.S. apartments, or some such thing. But when he was arrested at O'Hare, we didn't know that -- we only had a vague suspicion that he knew something: that he was a vaguely defined "material witness." He was kept in military detention not to prevent him from blowing up buildings -- if that were our objective, we could have simply indicted him within the criminal system, or detained Padilla with access to counsel, etc. -- but instead in order to interrogate him for months on end, without the presence of counsel, and under very coercive conditions. The (alleged) *proof* of his serious involvement in the bomb plot derived *from* that interrogation (and, allegedly, from the coercive interrogation of KSM after Padilla had been in custody for awhile).

Surely, Congress would not have intended to authorize *this* system of military detention -- a virtual dragnet of persons, including U.S. citizens arrested in domestic airports, followed by months of coercive and incommunicado interrogations, followed by extended military detention (or, as in Padilla's case) criminal trial, *if* the interrogation bears fruit.

All of which is to say that the question is not whether Congress would authorize the military detention of Padilla *knowing what we (purport to) know about him now,* but instead whether Congress authorized his transfer to incommunicado military detention based on the facts that were known when he was transferred to military custody back in June 2002, and on the President's unreviewable and standardless say so that he was an "enemy combatant" at the time of transfer. I think it's fairly plain what the risks of *that* sort of unbounded detention authorization would be for the security of citizens' liberty -- which is why I think it's fair to say that Congress didn't authorize *that*.

Posted by: Marty Lederman | Jan 20, 2006 5:52:42 AM

Tung -- I agree re: Jackson... John Hart Ely also makes a pretty big deal out of this point (the difficulty for courts of dealing with war cases when the political branches act in concert) in War and Responsibility.

For the record, I think your status distinction probably also maps onto the Guantanamo cases fairly well... even leaving the whole Geneva fight to the side for a moment, the central question in the military tribunal cases seems to be the authority for the commissions themselves, and not anything relating to the status of the detainees.

Which leads to my next question -- I take it that we both agree that Padilla and any other U.S.-citizen detainees _have_ due process rights, including the due process-based right to judicial review (although we may disagree on the extent of those rights). What about the Guantanamo detainees? Does the extent of their Fifth Amendment rights _turn_ on their status? Doesn't that lead us back in circles?

Posted by: Steve Vladeck | Jan 20, 2006 3:29:10 AM

We continue to look for European attributes in an enemy that comes from a different point of view. Al Qaeda does not represent a "state" because it believes itself to represent the Ummah, the body of Muslims from Indonesia to North Africa. That is about a billion people in a lot of states, although there is no evidence that the people they claim to represent support them (but the consent of the people is not part of Islamic thinking). They follow a 1400 year long Islamic military tradition with an entirely different set of rules than Western International Law. If you ask Bin Laden how he will treat POWs, he will give his view of Shari'ah law about the treatment of infidel prisoners captured during Jihad. He does not recogize the authority of the Geneva Conventions. Obviously we have to follow our own Law. However, we cannot completely ignore the enemy's point of view when drawing conclusions about the fuzzy places in the middle of settled law.

An enemy soldier who is not a US Citizen breaks no US law by engaging in combat. If you don't accept this, and insist that the enemy are simply criminals and are not entitled to status as soldiers, then you have become as fundamentalist as the other guys. Since he is not a criminal he cannot be tried in court and can only be held as a POW.

An enemy soldier who is a US Citizen may be guilty of Treason, or aiding the enemy. The problem here is that if he is a lawful combatant covered by the Geneva Convention, then he is protected from any such criminal prosecution. We can't try their soldiers for crimes we make up just as we expect that they won't try our soldiers for crimes we make up.

The Quirin decision proposes that the defendent Haupt was a US Citizen and a German spy. It is claimed that he was both guilty of Treason (for which he was not charged) and of unlawful beligerancy (for which he was tried in a Military Court). Because he was captured out of uniform, he was not protected by Geneva and therefore a charge of Treason might not have been precluded. His father, who worked side by side with him, was convicted of Treason for the same activity.

Had Haupt been captured in uniform in North Africa, however, then the German army would have had a valid protest to the ICRC if we attempted to charge him with Treason. He was one of their soldiers and they had a right to demand his protection.

The Scalia side argues that Hamdi must be tried. However, there is no evidence that Hamdi was even aware when he was captured that he had been born in the US and had citizenship. Is it fair to charge him with Treason against a country with which he did not know he had an association? Could you claim that he had criminal intent?

If you declare that no AUMF can permit the "extrajudicial" detention of a US Citizen, then what do you do with the uniformed enemy soldier who has committed no crime? Many would agree that some sort of hearing before detention would be a good policy for anyone captured out of uniform who is claimed to be an enemy combatant, just to make sure we don't make mistakes. However, the doctrinaire view that "no AUMF can authorize" implies that there is some inherent right, and if that right exists we cannot simply make up a judicial hearing and say it is satisfied. If the right exists, then the necessary judicial process must be self evident from an analysis of the right. This must ultimately place the Consitution in conflict with the Geneva Convention which prohibits civilian judicial process. We believe that our view of individual rights overrides International Law on how countries are supposed to deal with POWs.

That brings us back to Bin Laden and Shari'ah. He has the Law of God. We have the Constition. Both of us believe our law is superior to International Law.

Posted by: Howard Gilbert | Jan 20, 2006 12:59:09 AM

Steve (first name basis is okay by me),

On the scope of AUMF point, I'm not sure that I disagree with you. It's certainly plausible to say that we should interpret the scope of the AUMF narrowly with regard to the Non-Detention Act, because Congress can always make clear that it intended to supersede the latter -- which would only take a majority of each house; the President would presumably sign such a bill. This is the same group that passed the AUMF in the first place.

On the other hand, if the Court interprets the AUMF broadly and Congress disagrees, thereby passing a new bill, the President would presumably veto it, which would require 2/3 of each house to override -- a different and larger group than passed the AUMF in the first place.

So, to answer the question that posit -- I think it's not unreasonable to conclude that Congress *could* (again, it's a fair point whethere it *did* in this case) authorize military force that would include giving the President the power to detain American citizens demonstrated to fit within the terms of the authorization. We'd be in the top category of Justice Jackson's opinion in the Steel Seizure case, with the President and Congress acting together.

Posted by: Tung Yin | Jan 19, 2006 10:52:53 PM

Professor Yin (when do we get to a first-name basis, Tung?) raises some very compelling arguments, and once again demonstrates the availability of far more convincing and forceful arguments supporting various facets of the Administration's position than those typically advanced by the Administration itself. Naturally, I have a few points in response, although (perhaps to your surprise, Tung), I mostly agree with you.

1) You are absolutely right about the point re: this case would be different _publicly_ if Padilla _were_ an admitted member of al Qaeda. But who gets to say whether he is, and what type of review that determination is subject to, are both questions of due process (on which the Hamdi Court so badly fumbled). To prevail on the authority question, however, Padilla has to argue that there is no authority even if he _is_ who the government says he is... otherwise, all he's contesting is the procedures by which he's determined to be an "enemy combatant," and not the government's authority to hold him _as_ an enemy combatant. (It's analagous, if you will, to a facial challenge vs. an as-applied challenge).

2) You also correctly predict my view of the AUMF (not that it isn't already public, as I've written in the Yale Law Journal and the Yale Law & Policy Review, to do some shameless self-promoting of my own). The difference between whether _this_ AUMF doesn't authorize his detention and whether _any_ AUMF could is nicely summarized as the distinction between the Souter/Ginsburg concurrence/dissent in Hamdi, and the Scalia/Stevens dissent. The former opinion takes the position that this AUMF isn't sufficiently clear to satisfy the so-called Non Detention Act; the latter takes the position that _no_ AUMF, unless it suspended habeas, could authorize the extrajudicial detention of U.S. citizens (although I imagine the two Justices differ sharply on whether such a suspension would _itself_ be constitutional). Although I like the forcefulness of the Scalia/Stevens view, I think I'm more partial to the Souter/Ginsburg view -- Congress _can_ do it, they just need to be pretty damn explicit. (Cf. C.J. Chase's concurrence in Milligan). I don't see why Congress has to suspend habeas to provide for extrajudicial detention, especially in light of Salerno (and the Bail Reform Act), Hendricks (and civil committment for dangerous sex offenders), and Awadallah (and material witnesses).

In short, I do not disagree at all that it's hard, in Padilla's case, to disaggregate the merits of the authority issue from the status question. But, respectfully, I think that your analysis neglects the extent to which, at least implicitly, you've already _answered_ the authority question when you reach the status issue. That is to say, if Padilla were an asserted (or proven) member of al Qaeda, and if, as such, you were more comfortable detaining him, then that necessarily means that you believe that there is authority to detain U.S. citizen members of al Qaeda, doesn't it? Put another way, I see your thoughts as agonizing over how best to handle the thorny due process/status issues, but predetermining that, should the status unambiguously be proven, there must be authority.

Surely, most of us can agree (as could eight members of the Hamdi Court -- everyone except Justice Thomas) that, absent any meaningful review, the government cannot hold U.S. citizens as enemy combatants. Otherwise, the government could pick anyone up the street, and its say-so would suffice to justify their indefinite detention.

I think that I just take it one step further than you do -- I believe that even the bad guys, even if they _are_ bad guys, can't be so held without something more explicit from Congress.

I don't usually like to quote Justice Frankfurter (because, to be fair, I don't usually like Frankfurter), but there's one passage of his of which I'm particularly fond: "It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." And so it is with Padilla.

Posted by: Steve Vladeck | Jan 19, 2006 10:40:31 PM

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