forthcoming scholarship

Designing Detention: A Model Law for Terrorist Incapacitation

Forthcoming in the edited volume Legislating the War on Terror: An Agenda for Reform (summer 2009) (Brookings Institution) (Benjamin Wittes, ed.)

Benjamin Wittes, Senior Fellow, Brookings (Governance Studies)
Colleen A. Peppard

A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change in administration, however, it has become increasingly clear that the United States—even under a Democratic administration and with substantial Democratic majorities in both houses of Congress—is not going to abandon long-term detention of terror suspects and revert to a pure law enforcement model for incapacitating them, and it is not going to deal with the population of Guantánamo on the basis of freeing everyone whom it cannot prosecute. While the developing consensus still has many dissenters, the real question now is not whether America will have some detention system, but what sort of detention system, designed by whom, and using what rules.

In his recent speech at the National Archives on national security strategy and law, President Obama placed himself solidly within this emerging body of thought. He recognized that protecting our national security may require a non-criminal detention system for terrorists who cannot be tried but are too dangerous to release. And he made clear that this system needs to be fair and rigorous, supervised by the federal courts and created by an act of Congress. The president called for a system that has “clear, defensible, and lawful standards,” “fair procedures so that we don’t make mistakes,” and “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”[i]

This paper, and the model legislative text we have attached as an appendix, is an effort to imagine such a regime at the granular level of actual legislative language. Much commentary and speculation has focused on the form that this new regime should take, rather than on the details of the many questions a detention regime will need to address. In the wake of the Supreme Court’s decision in Boumediene v. Bush,[ii] it is inevitable that federal judges will ultimately oversee any such detention system. Aside from this one general feature, however, the framework for the new system remains wide open in any number of respects.

The necessity of a preventative detention apparatus is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats. Defense Secretary Robert Gates recently testified that, after Guantánamo closes, there will remain a residual group of 50 to 100 Guantánamo detainees who cannot be tried yet are too dangerous to release.[iii] Yet the structural issues that generate this group actually implicate a larger population than those currently held at Guantánamo. Any new detention regime will need to address not only Guantánamo detainees but also similar detainees held elsewhere and other terrorists captured in the future outside of zones of active military operations.

The debate over what to do both with these residual Guantánamo detainees and with future captives in global counterterrorism operations has largely focused on which legal regime should serve as the reference guide. Commentators from across the spectrum have debated the merits of the law-of-war versus the criminal-law paradigms. But except in the broadest terms, this debate does little to advance the discussion on how exactly we should detain suspected terrorists—or, indeed, how we should define the category of suspected terrorists we mean to detain.

Meanwhile, advocates of a non-criminal detention scheme have tended to focus on the possibility of creating a national security court. Proponents argue that a national security court could bridge the divide between the law-of-war and criminal-justice paradigms, using elements of both to create a new system responsive to modern security threats. A national security court would be staffed by federal judges, buttressing the legitimacy of any detention regime. It could address issues such as the protection of classified information and the consideration of evidence which federal courts would normally exclude from criminal proceedings. Suggested national security court models have ranged from a stand-alone institution comparable to the Foreign Intelligence Surveillance Court to simply giving exclusive jurisdiction over detention cases to the federal district court in the District of Columbia. National security court advocates have suggested their use to oversee wartime detentions, to conduct trials for suspected terrorists, or both.

Yet national security court critics have argued that such proposals are significantly underdeveloped in both form and function. As one opponent writes, these proposals are “dangerously myopic proxies for larger debates that must be resolved first.”[iv] And the critics have a point. Many proposals for national security courts offer an institutional solution (creating a new court) for what is really a substantive set of problems: We, as a society, have not yet decided on the rules that will govern terrorist detentions. We have not yet decided the substantive standards, procedural elements, or rights of the accused within the processes in question. These issues are far more important than what building the adjudication will take place in or what to call the institution that will do the adjudication.

Given that there will be a residual group of Guantánamo detainees and that the president intends, as he put it, to “work with Congress to develop an appropriate legal regime” to govern their detentions, now is the time to answer these important questions. Jack Goldsmith, in a paper earlier this year, identified several key questions any detention legislation will have to address:[v]

  • Who falls within the definition of the detainable class?
  • What are the evidentiary and procedural rules?
  • How much of the proceedings should take place in public?
  • How often should detention decisions be reviewed?
  • What rules should govern access to classified information?
  • Should the court be a stand-alone institution?
  • Should the court make first-order detention decisions or review detention decisions made by the military?

In this paper, we do not intend to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language. For those unconvinced of the necessity of such a law, there is a voluminous literature—including several works by one of the present authors.[vi] Our aim here is to elaborate on this previous work, on the work of other writers and scholars, and on subsequent legal developments in both U.S. courts and international jurisprudence in an effort to address Goldsmith’s questions head on. That is, we aim to begin the process of translating the emerging consensus that some detention apparatus is necessary into actionable legislation, to bring the debate down from a high-altitude argument over first principles to a more practically useful discussion of what a coherent approach to non-criminal terrorism detentions ought to look like. The attached model detention law is a further effort to translate the choices we put forward into actual legislative language, which we offer as a kind of discussion draft as Congress begins to contemplate President Obama’s request.

In addressing the design elements of a detention law, rather than arguing for one, we necessarily take as given several assumptions that many readers may still regard as premature. First, we assume that the laws of war do not offer an adequate legal framework for the detention of terrorist suspects. The detention system they envision relies on numerous premises which do not hold true for conflicts with global terrorist organizations—for example, that it is fairly simple to distinguish those who are participating in hostilities from those who are not, that the nationality of the participants should determine their rights, and that conflicts will end in an identifiable manner. Conflicts with terrorist organizations buck these premises, and therefore render the framework provided by the Geneva Conventions incomplete, and arguably ill-suited, for a long-term conflict with Al Qaeda.

Second, we assume that reliance solely on domestic criminal law to incapacitate transnational terrorists is untenable. The rules of procedure and evidence for criminal trials create too high a bar to detain terrorists arrested in the far corners of the earth under circumstances less than favorable for the collection of evidence. People against whom evidence may not come close to proving criminal culpability may still pose an unacceptable danger as a result of frankly-acknowledged allegiance to enemy organizations, evidence that would be inadmissible in criminal proceedings, or evidence that cumulatively falls short of proof beyond a reasonable doubt of criminal conduct. Efforts to shoehorn terrorism cases into the criminal justice system may also have serious negative repercussions for the conduct of domestic criminal trials more generally.[vii] We assume, in short, that the appropriate detention regime for counterterrorism purposes will draw on both the criminal-law and law-of-war traditions but is ultimately very much its own animal.

We proceed in five parts. In the first section, we lay out a general overview of the model detention statute we envision, how it would work mechanically and what the legal process under its terms would look like. In the second section, we discuss the model law’s definition of the class of people subject to detention. We next turn to the details of the procedures the model law would employ to adjudicate terrorist detentions. In the penultimate section, we discuss briefly the various accountability mechanisms we have sought to build into the model law. Finally, we conclude with a set of observations concerning how the model law would help insulate traditional wartime detentions from probing post-Boumediene judicial review and preserve a zone of executive discretion for such detentions.

“The Usefulness of a Negative Example: What We Can Learn About Evidence Rules from the Government’s Most Recent Efforts to Construct a Military Commissions Process”

William Mitchell Law Review, Vol. 35, No. 4, 2009

VICTOR HANSEN, New England Law

The military commissions give us an opportunity to explore and reflect on whether the procedures to try alleged foreign terrorists or the procedures for some future military commission should follow the approach of the Bush administration. Looking back on the evidentiary scheme of the military commissions also gives us an opportunity to reflect on the application of the rules of evidence in military courts-martial and other criminal prosecutions.

To explore these issues, this paper will discuss the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence. Why were these provisions created and how were they to be applied within the full spectrum of military operations? The paper will then compare the Military Rules of Evidence generally to the various approaches offered up in the military commissions system. What were the stated reasons for any changes and why did the President ultimately settle on the approach reflected in the Manual for Military Commissions? Are these reasons credible and are there other, perhaps unstated reasons for the rule changes? To the extent that we can determine the reasons for why the evidence rules were changed, can similar rationales apply to other criminal trials in the military context? The paper also asks if we are at an evidence cross-road. Are we at a point where we need to reexamine the way evidence is treated in military criminal cases tried under the UCMJ? For example, should certain combat exceptions be written in to the military rules of evidence? On the other hand, are the recent efforts to depart from the established rules of evidence in military commissions nothing more then an attempt to give the government an advantage over a class of defendants who it deems is not worthy of enjoying full protections of a fair trial?

Terror, the Rule of Law, and Institutional Design

Governance (July 2009) Jerry Mashaw, Yale Law School

The journal Governance is offering a free download of an article by Professor Jerry Mashaw of Yale Law School in its current issue: “Terror, the Rule of Law, and Institutional Design” (22.3, July 2009).  Mashaw says that the post-9/11 struggle is a “story of administrative arrogance, judicial hesitancy, and congressional failure.”  But he is skeptical that a change in administration will eliminate the long-term threat to American legal culture that is posed by the war against terror.  Mashaw doubts that interbranch competition, or reforms within the executive branch, can assure respect for the rule of the law in times of national emergency.  The best solution, he says, might be the previously unthinkable notion of “two constitutions” — one for normalcy, and one for emergencies — so that “actions taken and legally sanctioned in extraordinary times [do] not bleed into and shape the normal legal culture.”  Download here:

“The President, Congress and the Security Council: Counterterrorism and the Use of Force Through the Internationalist Lens”

Willamette Law Review, Vol. 45, p. 417, 2009
University of Missouri School of Law Legal Studies Research Paper No. 2009-08

MARGARET E. MCGUINNESS, University of Missouri School of Law

This contribution to the 2008 Willamette Law School symposium, ?Presidential Power in the 21st Century,? addresses the question of presidential powers to carry counterterrorism policies – in particular the use of force against terrorist groups – through an internationalist lens. Viewed through that lens, domestic constitutional understandings of appropriate democratic constraints on presidential counterterrorism powers can be seen as interacting with international institutional understandings of democratic accountability for the use of force. This intersystemic process can be engaged to address ?democracy deficits? at both the international and domestic level and to promote reform at international organizations.

Part I of the article explains that U.S. counterterrorism policy post-September 11, 2001 has been more multilateral in its orientation than is generally assumed, and that counterterrorism policy going forward is likely to rely more, rather than less, on multilateral institutions. Part II examines the question of U.S. constitutional practice where the war powers have been exercised through international institutions. Part III argues that international institutional legitimacy should be more explicitly invoked as a rationale for closer consultation with and participation by Congress in counterterrorism use of force decisions. A more explicit acknowledgment of the dynamic, dialectical interaction between domestic democratic accountability for a state?s participation in U.N. counterterrorism programs and the international and domestic accountability for the action taken by the U.N. offers several advantages. Open embrace of more robust congressional participation in U.S./U.N. counterterrorism practice can contribute to overcoming the democracy gaps at home and within the U.N. by: (1) strengthening democratic accountability domestically; (2) modeling ?best practices? for nascent democracies and regimes in transition; (3) promoting procedural legitimacy within the Council; (4) promoting legitimacy of emerging international legal norms concerning the use of force against terrorists and terrorist groups; (5) harmonizing U.N. counterterrorism programs with international human rights protections; and (6) clarifying the role of judicial review (at the domestic and international level) of Security Council actions.

“Counter-Terrorism Law and Inchoate Offences”

GABRIEL HALLEVY, Ono Academic College, Faculty of Law

The modern definitions of the inchoate offences are well known in the criminal law since the Middle Ages both in European-Continent legal systems and in the English Common Law. They were mostly developed by the case-laws of the Star Chamber Court, which was abolished in 1640. The inchoate offences include three basic offences: Attempt, Conspiracy and Solicitation, but different legal systems defined some other offences as inchoate, such as the Aider and Abettor in Britain after the full validation of the Serious Crimes Act, 2007, c.27, s.44. In this paper it is argued, that there is a very intensive interaction between the fight against terrorism and inchoate offences. The fight against terrorism effects the definition of inchoate offences, and inchoate offences are used as a major instrument of criminal law in the legal fight against terrorism.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN

A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare?s tendency to blur the distinction between combatant and civilian necessitates some revision of DPH. However, States have incentives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policymakers who seek to revise the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how best to revise DPH. Instead, a radical revision of DPH is needed. This report will briefly examine the law of war and then explore the relative merits of the U.S., Israeli, and the International Committee of the Red Cross?s interpretations of DPH. Lastly, this report will recommend potential solutions to the dilemma of DPH interpretation, most notably a membership-based approach.

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