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Sunday, September 19, 2010

The Graham Bill and Detention Authority: U.S. Citizens and Material Support

In last Sunday’s post, I attempted a relatively comprehensive critique of the Graham bill (S. 3037), which is supposedly designed to (1) codify existing practices in the post-Boumediene habeas litigation; and/or (2) provide clearer substantive, evidentiary, and procedural rules for courts to follow in these cases. 

In the interest of highlighting two significant trees in a fairly dense forest (and in light of the various intervening exchanges between me and Ben Wittes, Bobby Chesney, and Peter Margulies; and the speech Senator Graham is apparently set to give tomorrow at the American Enterprise Institute), I wanted to focus more specifically on the heart of the problem--i.e., why the substantive detention authority provided by the bill is so troubling (Gabor Rona from Human Rights First already offered his own thoughts in the comments to the first post—they’re worth reading). As I explain in more detail below the fold, in addition to my original observations from last week, the detention authority provided by the Graham bill would dramatically expand existing U.S. law in two other respects: allowing for the stateside detention of U.S. citizens, and focusing on “material support” as a basis for detention.

(1) Stateside Detention of U.S. Citizens

Although the Graham bill borrows the critical detention authority language (new 28 U.S.C. § 2256(a)(6)) almost verbatim from the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), there is one vital difference: Whereas the MCA authorizes military commissions only for “alien unprivileged enemy belligerents,” the Graham bill authorizes detention of “unprivileged enemy belligerents,” regardless of their citizenship. Thus, the Graham bill would almost certainly apply to U.S. citizens, and it would also likely satisfy the Non-Detention Act, 18 U.S.C. § 4001(a), which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Moreover, because the bill incorporates no limits on where detention can occur, it would also likely authorize the detention of U.S. citizens who satisfy the substantive detention criteria even if they are initially arrested within the United States. 

Of course, the Supreme Court in Hamdi held that the 2001 Authorization for the Use of Military Force (AUMF) did authorize the detention of a U.S. citizen, but Justice O’Connor’s opinion for the plurality there relied heavily on the extent to which Hamdi was captured “on the battlefield,” in an active combat theater in Afghanistan. Where a citizen was picked up stateside, it appeared in 2004 at least that there were five votes to hold that the AUMF did not authorize detention, given Justice Scalia’s dissent in Hamdi and the four-Justice dissent in Padilla. As a result, today it is unclear—at best—whether the AUMF would allow the United States to detain without charges a U.S. citizen captured within the territorial United States. The Graham bill--to the extent that it constitutionally could--would change that.

(2) Pegging Detention Authority to “Material Support”

Of course, authorizing the stateside detention of U.S. citizens might not raise any hackles if the bill only applied to those directly involved in planning acts of terrorism against the U.S. or its allies. But part of why the potential domestic application of the Graham bill is so significant is because the bill goes much further, authorizing the detention without trial of anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners.” The focus on the “material support” concept is troubling in at least three respects, which I’ll briefly try to delineate below: 

First, the concept of “material support” has been given an incredibly broad reading by the federal government, which has used the federal criminal material support statute to prosecute individuals for a wide range of conduct, very little of which resembles anything close to active participation in hostilities. The government has even claimed the authority under 18 U.S.C. § 2339B to prosecute individuals whose only "support" came in the form of speech trying to convince terrorist groups to pursue peaceful measures. Whatever the merits of this reading, it unquestionably sweeps far beyond what me might previously have thought of as "belligerency." 

Second, and related, the Supreme Court just this June upheld § 2339B against constitutional challenge, concluding that the statute was not void for vagueness, and did not otherwise violate the First Amendment even though it was a content-based regulation of speech. So long as the advocacy on behalf of a designated foreign terrorist organization was "coordinated," Chief Justice Roberts concluded, Congress could (and did) constitutionally proscribe it.  Because of Humanitarian Law Project, virtually any “coordinated” activity with a designated foreign terrorist organization, regardless of its intent or purpose, is the provision of “material support” in violation of 18 U.S.C. § 2339B. It’s hardly a stretch to see how the same concept could easily be adopted in the detention context--producing a remarkably expansive detention authority, especially vis-a-vis U.S. citizens within the territorial United States. 

Third, even if the material support statute doesn't violate the First or Fifth Amendments, "material support" as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There's certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of "material support," without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities.  In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings. 

In one of his early posts, Ben already offered a bit of a defense of the Graham bill’s treatment of material support. In particular, he suggested that this provision, too, is merely codifying existing practice, since Judge Janice Rogers Brown already relied upon the similar language in the MCA in al-Bihani as informing the scope of the government’s detention authority (in the same opinion that suggested that IHL had no bearing on the scope of the AUMF). But even if that discussion in al-Bihani survived its August dicta-ization by the other seven active D.C. Circuit judges (and I don't think it did), it's a preposterous argument: Congress in the MCA was not even remotely speaking to detention authority--it was dealing with who could be tried by military commissions.  The focus on material support was necessary because one of the offenses that the MCA creates is "providing material support to terrorism," which itself raises constitutional questions concerning Congress's power to create new war crimes and subject them to trial by military commission (and to do so retroactively). In that sense, it is telling that no other judge to consider the issue in any of these cases has found the language of the MCA at all useful in ascertaining the scope of detention authority. The limitless scope of "material support" may have a lot to do with explaining why... 

Posted by Steve Vladeck on September 19, 2010 at 11:10 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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It is entirely possible that "material support" for a terrorist organization involves many of the same elements as "material support" for hostilities. Supplying weapons and explosives, surveying targets, warning when enemy forces approach, all these things apply both to an attach on NATO forces in Afghanistan and a police station in NYC. What is different is not what is or is not material support, but rather what is a terrorist organization and what is a Taliban insurgent fighting against what from his point of view are foreign forces who have occupied his country. If the enemy dressed in uniforms and followed international law then we would capture them and hold them as POWs. They don't, so we have to adopt some other criteria for enemy soldiers who are treated as if they were POWs even though they are not held as lawful combatants. Material support for hostilities is a stab in that direction.

Enemy soldiers are not criminals and may not be charged with crimes. Unlawful combatants who directly participate in combat may also be held as if they were POWs without being charged with a crime. The existence of civilian crimes and some dubious MCA charges should not confuse things, unless you are under the misapprehension that because the enemy does not wear uniforms and obey international law that we are somehow obligated to charge every one of them with crimes or else let them go. Now two administrations, every Congress, and the Supreme Court (in Hamdi) disagree with that idea, but it still hangs around. If the Obama administration intends to continue to detain some enemy combatants without criminal charges (including MCA charges) then they need a workable definition of the criteria for the detention of someone whose participation in hostilities rises to the level where detention is warranted but does not cross the line to become a war crime. If "material support for hostilities" isn't good enough, suggest something better. If you insist that you will only be satisfied by criminal charges and that no detention under IHL, whether as POWs or Civilian Internees, is acceptable to you, then no language will ever be acceptable and so criticizing some particular language is misleading.

Posted by: Howard GIlbert | Sep 20, 2010 11:10:24 AM

Howard -- I don't fully agree with your readings of Hamdi and Padilla, but I think the larger issue is your charge that I'm confusing the material support statutes. The MCA, in defining the offense of "providing material support to terrorism," specifically incorporates the civilian criminal statute -- 18 U.S.C. 2339. True, the MCA does not similarly incorporate 2339 in _defining_ "unprivileged enemy belligerents," but I hardly think it's a stretch that courts would look to 2339 in determining what it means to "materially support" hostilities. Note, I'm not arguing that there's a 1:1 congruence; only that material support is such a sweeping idea that it would encompass a massive detention authority--and, regardless of its merits, authority far more sweeping than what the AUMF currently provides.

Posted by: Steve Vladeck | Sep 19, 2010 11:35:37 PM

In the Hamdi and Padilla cases (which were heard and decided on the same day) the Second Circuit had held that the Non-Detention act required an explicit authorization from Congress before a US citizen could be held anywhere, while the Fourth Circuit had held that there was an inherent authority under Article II for the military to detain enemy combatants. The Court ruled that the requirements in the Non-Detention act were met by the AUMF (an act of Congress), and although the AUMF did not explicitly mention detention, once it created a state of armed conflict, the detention of enemy combatants is a necessary incident of war. Since it reached a conclusion in the case using statutory analysis, it declined to consider the Article II question (which remains unresolved today, but might be binding in the Fourth Circuit since the Supreme Court did not override the finding).

None of this has anything to do with battlefields, nor is it plausible that a question of law (was the requirment of the Non-Detention Act met) cannot depend on a set of facts in a particular test case.

The battlefield part comes from a completely separate issue about whether Hamdi, who denied that he was an enemy combatant because he joined the Taliban Army to fight the Northern Alliance instead of the US, had a right to challenge his classification as an enemy combatant in an Article III court. The government argued that he had no such right, but the Court found that a US Citizen has a Due Process right to challenge the factual basis for his detention before an impartial tribunal, which in practice would have been formed in District Court in the Fourth Circuit had Hamdi not been repatriated first to Saudi Arabia. Most of the decision then goes on to describe the rules associated with such a tribunal.

However, before remanding the case to the District Court for fact finding, the Supreme Court had to address the logical question of whether given the submissions and uncontested facts it was possible to determine as a matter of law that Hamdi could not possibly be an enemy combatant. It makes no sense to subject him to a fact finding hearing if it would be impossible to find him to be an enemy combatant as a matter of definition.

In this context, the Supreme Court would never claim to draw a conclusion about the facts. It would be illogical for them to decide that Hamdi was an enemy combatant and then remand his case to a lower court in order to determine if the facts supported a finding that he was an enemy combatant. However, they did advance the proposition that the uncontested fact that he was captured on a battlefield in Afghanistan holding a weapon as a member of the enemy army was consistent with the legal possibility that he might be an enemy combatant and that, given these facts, it was not possible to rule out as a matter of law the possibility that he could be an enemy combatant before holding a hearing on the facts.

As you will see if you read the decision again, nothing in the Non-Detention Act analysis depends on where Hamdi was captured. Therefore, as the Fourth Circuit was subsequently to find in Padilla v Hanft, the Hamdi decision does indicate that a US citizen captured in the US (or at least at the border attempting to enter the US as was the case with Padilla) can be detained by the military if he is an enemy combatant. The Fourth Circuit also cited as an independent basis the ex parte Quirin case where Huber Has Haupt was captured in the US and was held as an enemy combatant. However, in both the Padilla and Haupt cases, the US citizen travelled overseas and enlisted in an enemy army, was trained as and served as a soldier, and then returned to the US on a military mission of sabotage on behalf of the enemy army.

There is nothing in any Supreme Court case that supports the proposition that a US citizen who has never left the US and has not joined up with an invading army or rebellion can be detained by the military for "providing material support" for a foreign terrorist organization. If this bill can be read as authorizing such detention, then that is a serious problem that warrants your criticism. Travelling to Germany (Haupt) or Afghanistan (Hamdi, Padilla) and joining a foreign army that eventually becomes involved in a war/armed conflict with the US makes you an enemy combatant. Hamdi was probably a lawful combatant despite what the US claims. Padilla and Haupt were unlawful combatants because they were spies and saboteurs. The authority to detain all three is provided by the current law and Supreme Court decisions.

Do not confuse this statutes attempt to explain who is an is not an enemy combatant as someone who “has purposefully and materially supported hostilities against the United States or its coalition partners” with the crime of providing material support to a terrorist organization. Some people may regard the Taliban as a terrorist organization, but a simple solider in the 055 Brigade who joined up as Hamdi did to fight the Northern Alliance may have purposely and materially supported hostilities against a coalition partner, but had nothing at all to do with any terrorist organization. That is, supporting hostilities against the US, NATO, and the Afghan Army are potentially the acts of a lawful enemy combatant. Such a combatant can be detained under IHL (specifically the Third Geneva Convention as a POW). As you note, this is not a charge of any crime recognized under international law, and although such a person can be detained, he cannot be prosecuted for anything under a Court Martial (because lawful enemy combatants cannot be tried before the current Military Commissions).

There are a bunch of different "material support" clauses and you are confusing the civilian criminal charge, the MCA charge against unlawful enemy combatants (which I agree is an improper charge), and the use of "material support" in this statue (but support for hostilities against an army, not support for a terrorist organization) to define who is and is not sufficiently involved with the enemy military force to justify detention.

Posted by: Howard Gilbert | Sep 19, 2010 9:58:53 PM

It may not be a substantive stretch to apply humanitarian law project in the detention context, but its quite a procedural stretch given the fact that whatever the standards for detention end up being they will not be a) reasonable doubt based nor probably b) jury based.

have some faith in the SCOTUS who decided Boumediene not to authorize detention so broadly without procedural protections. Under Hamdi, recall, the due process test for whatever Habeas procedures are developed post boumediane will be a balancing test from Massachusetts v. Eldridge. The broadness of the substantive detention authority mized with the low procedural standards of post Boumediene habeas will weight heavily to invalidate this. no?

Posted by: george weiss | Sep 19, 2010 4:07:10 PM

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