A Surreply to Ben Wittes on the Graham Bill

Not surprisingly, my rather harsh criticism of the Graham bill in this post from Sunday morning has provoked a series of reactions from its defenders over at Lawfare (for what it's worth, this is my favorite thing about blogging--meaningful substantive disagreements fleshed out over time).  Although I have thus far been responding offline, Ben's latest salvo mischaracterizes what I've said in a couple of ways that may affect the substance of the ongoing dialogue, so I thought I'd clarify a bit (below the fold) for those who have been following this debate all the way through.

First, Ben says that "it’s a revealing admission on Steve’s part that current law is not adequate" with regard to the class of individuals who can be detained without charges under the extant legal regime. That's not quite what I said. In my original post, I suggested that the 2001 Authorization for the Use of Military Force (AUMF) is itself insufficiently clear on this point, since it nowhere refers at all to any detention authority. I, for one, think that the D.C. district court has made significant strides in bringing clarity to the subject in the two years of litigation since Boumediene (whatever the merits of the specific answers that it has provided), and (I think) I was exceedingly careful in my original post to distinguish between the AUMF itself and how it has subsequently been interpreted. 

To be sure, I believe that Congress can try to legislate more specifically with regard to who can be detained. There are certainly other examples in American history of statutes that more precisely identified the subject class. I nevertheless believe, for reasons I articulated ad nauseam over the weekend, that such legislation isn't needed in light of these intervening judicial developments (and because statutory precision in this context may in any event be impossible). Moreover, legislation could in fact be dangerous to the extent that it effects a sub silentio extension of the scope of the current armed conflict (as, in my view, the Graham bill would).

Second, Ben is rather critical of my concern with what would be new 28 U.S.C. § 2256(a)(6)(C), which would authorize the detention of anyone who, before, on, or after September 11, "was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated forces." As Ben writes, "If members of enemy forces are not covered by the international laws of war, then who exactly is?" Ben's rhetoric is powerful, but he overstates my argument and understates the scope of the provision: My particular focus is on those individuals whom the government claims are "part of" these groups even though they have never committed a belligerent act--or otherwise provided any support whatsoever for hostilities against the United States. (Or, relatedly, individuals who were involved with al Qaeda in the early 1990s, but not since.) Indeed, if you read the three subsections of § 2256(a)(6) together (go ahead, I'll wait), you'll see that subsections (A) and (B) already address those other cases (participating in or providing material support for hostilities). [And as Gabor Rona noted in his comment to my original post, even those raise some issues under IHL.] 

To put it succinctly, the only cases in which subsection (C) would be necessary would be cases in which neither (A) nor (B) was satisfied--i.e., cases where the detainee had engaged in no affirmative act of belligerency vis-a-vis the U.S. or its coalition partners.  Let me be clear, here: I am not an IHL expert, and try very hard not to pretend to be one.  But my amateur understanding of the relevant law is that, at a minimum (and even in non-international armed conflict), there must be some nexus between the individual and the underlying hostilities in order for there to be authority to detain. In cases where neither (A) nor (B) are satisfied, just how strong is that link?

Finally, Ben joins in my reading of the myriad ways in which the Graham bill would otherwise cut off judicial review of claims besides challenges to ongoing detention (a point curiously missing from summaries of the legislation), but is rather dismissive of my concerns, "finding myself nodding in agreement with each [result] straight across Steve’s incredulity." In that regard, Ben completely ignores the decades of precedent establishing the right of defendants before military tribunals to litigate their right not to be tried before the trial takes place. Perhaps he believes these cases are wrong or inapposite; I happen to think they're bedrock.  He also doesn't respond to my point about the bill's constraint on the scope of post-conviction review of military commissions, which is basically rendered pointless by the exhaustion requirements and the concomitant bar on re-litigation of non-jurisdictional claims. And with regard to transfers, he assumes that, so long as the government swears it is acting in "good faith" to secure the release of a detainee, there is nothing for courts to do, and so no reason why Congress shouldn't take away their power to act. 

As in my original post, I think this argument misses the distinction between sound (or, in my view, unsound) exercises of judicial discretion and congressionally imposed constraints on judicial power. And lest this appear to be a distinction without a difference, imagine a case where it is abundantly clear that the detainee will be tortured if returned to his home country, and the government seeks to return him anyway. Would we be so comfortable with the Graham bill's categorical preclusion of judicial review then, when domestic and international law would both clearly prohibit the imminent transfer? What about if the government's "good faith" efforts drag on over the course of a decade? Are we so willing to accept that courts won't exert pressure on the political branches to prevent detainees from languishing in permanent (as opposed to long-term, but temporary) limbo?

Lest we lose sight of the big picture, though, it's important to realize that the wrangling over collateral review and transfers is a sideshow to the real problem (a point that should itself make one wonder why those provisions are even in the bill). The heart of the Graham bill both (1) goes well beyond problems that critics have identified in the post-Boumediene habeas litigation; and (2) doesn't do nearly as much as its defenders suggest to actually resolve those problems (other than substituting new ones in their stead). However convincing Ben's thoughtful response to my post is on its own terms, I think it's telling that these two core critiques are largely unaddressed.