Posted by on May 31, 2013 in Blog

By Isaac Levey
AAI Summer Legal Fellow

Last week, the House Judiciary Committee held a hearing on “Protecting U.S. Citizens’ Constitutional Rights During the War on Terror.”  Witnesses discussed the elusive quest to balance perhaps the two most important goals our policymakers should face: protecting our citizens from violent attacks; and observing the sacred constitutional freedoms we must prize as much as our safety. The witnesses focused particularly on the detention and trial of suspected terrorists in the United States with particular focus on whether they should be processed through the ordinary criminal justice system. AAI President James Zogby submitted a statement for the record, detailing the pervasive targeting and profiling of Arab Americans and American Muslims that dramatically increased after the September 11, 2001 attacks, and continues largely unabated today. The hearing is particularly important in light of President Obama’s speech (given the day after the hearing) at the National Defense University outlining the future of America’s counterterrorism policy.

The human costs of stringent anti-terror efforts on Americans’ civil liberties were detailed powerfully by Dr. Zogby’s description of the NYPD/CIA collaboration in spying on Arab and Muslim Americans, mass deportations in the weeks after 9/11, and the FBI’s use of anti-Arab and anti-Muslim training materials. Zogby pointed out that not only do such actions run counter to basic American values, but they are also ineffective in protecting national security because they create distrust between law enforcement and the American Muslim and Arab American communities. And as the President pointed out in his speech, working with the American Muslim community is the best way for the government to prevent homegrown violent extremism (see a previous post for more information on this subject). Keeping these costs and questions in mind is vital in considering both the lawfulness and wisdom (which are by no means the same) of policy regarding the detention of suspected terrorists.

Myths and Realities on Civilian and Military Detention

The question debated by all the witnesses was whether, and under what circumstances, the military could, would, or should detain a suspected terrorist captured in the United States. All the panelists seemed to agree that, at least where the suspect is an American citizen, military detention is at best dubious – if not clearly illegal – under current law. The joint testimonies of Profs. Robert Chensey and Benjamin Wittes, two national security scholars who help operate the well-known Lawfare blog, as well as that of Steven A. Engel, who served in the Justice Department in the last three years of the George W. Bush Administration, focused on the recent example of Dzhokhar Tsarnaev, the surviving brother suspected of perpetrating the Boston Marathon bombings. Despite demands in some quarters (including from this blog’s old “friend” Lindsey Graham, who as a military lawyer should really know better) that Tsarnaev be treated as an enemy combatant, the Obama Administration quickly made clear that the alleged bomber, an American citizen with no apparent ties to al-Qaeda or any other terrorist organization with whom the United States is at war, will be tried for his crimes in the United States District Court for the District of Massachusetts, where formal charges were filed six days after the bombing. Engel agreed with Chesney and Wittes that this was the proper approach in Tsarnaev’s case. Engel, however, argued that the military detention of a citizen, even captured in the United States, could be constitutionally authorized where that citizen was part of al-Qaeda or the Taliban, or an associated force, under the 2001 Authorization for the Use of Military Force (AUMF). See Hamdi v. Rumsfeld (2004) (holding an American citizen who fought with the Taliban could be detained by the military pursuant to the AUMF); Ex parte Quirin (1942) (same with respect to American citizens fighting on the side of Germany in World War II, even when captured in the U.S.). But see Ex parte Milligan (1866) (American citizen who is not a member of an enemy military force can never be subject to military trial even if the writ of habeas corpus is formally suspended).

While Chesney and Wittes acknowledged the precedential force of decisions like Hamdi and Quirin, they argued as a prudential matter that the military detention of suspected terrorists captured in the United States is bad policy, and unlikely to happen in the future.  Since 9/11, the U.S. has held a grand total of two domestically captured terror suspects in military custody: José Padilla, an American citizen arrested in Chicago; and Kahlah al-Marri, a Qatari citizen lawfully living in the U.S. when he was arrested. In both cases, courts split all over the place as to the legality of holding them in military custody, but before the Supreme Court could weigh in, the government (President Bush in Padilla’s case; Obama with al-Marri) transferred the detainee to the Article III civilian justice system. Chesney and Wittes argue that this outcome is highly preferable to military detention for anyone – citizen or alien – captured in the United States. Indeed, this has essentially been de facto executive branch policy since 9/11 (with the sole exceptions of Padilla and al-Marri), and has been the official policy of the Obama Administration since at least September 2011. Given these factors – the uncertain legality and certain litigation costs of military detention – combined with the facts that over 500 people have been convicted of terrorism-related offenses in Article III courts since 9/11 and none of them have escaped from prison the Executive Branch has clearly concluded that any benefits of militarily detention for domestically captured terror suspects are manifestly outweighed by the costs. That calculation is reflected in President Obama’s speech, and I think it is plainly correct. Legal or not, the military detention of suspected terrorists captured in the United States is just bad policy.

But despite these points of common sense, because military detention is not explicitly foreclosed by statute, a misconception exists – on both the right and the left – that it is a real possibility. The result is that whenever there is a domestic terror arrest – Tsarnaev is only the most recent example – there is clamor from the right to hold him as an enemy combatant. On the other hand, litigation from the left – Chesney and Wittes point to the pending case Hedges v. Obama in the U.S. Court of Appeals for the Second Circuit as a paradigmatic example – requires the government to expend time and resources in defending lawsuits based on hypothetical scenarios, such as military detention of humanitarian activists and reporters, that might be troubling if they weren’t wholly implausible. Chesney and Wittes therefore propose essentially enacting the status quo into law: they favor legislation explicitly clarifying that “military detention in counterterrorism under the AUMF is not available with respect to any persons – whether United States citizens or aliens – arrested within the United States.” I agree.  No one could seriously dispute that this would be a valid congressional restriction on the President’s war powers, and for all the reasons Chesney and Wittes explain, it would bring much-needed clarity to this subject. It would protect Americans’ civil liberties at little or no cost to the President’s ability to protect the nation.

Furthermore, such a restriction seems clearly in line with the counterterrorism approach President Obama outlined in his NDU speech. The President emphasized the need to move away from a military or war-focused framework in combating terrorism – going so far as to invite Congress to restrict his power under the very broad AUMF – and renewed his consistent call to shut down the detention facility at Guantánamo Bay. The Chesney-Wittes proposal, which is an explicit, pronounced limit on military authority in counterterrorism operations, fits comfortably with the President’s larger proposals. Indeed, the political theater regarding enemy combatants that erupts whenever we arrest a suspected terrorist – Chesney and Wittes call it a “kabuki dance” – is symptomatic of the larger fight over Guantánamo in general. Arguments that the civilian court system can’t handle these detainees is just as false as the idea that they can’t handle the likes of Tsarnaev. Article III courts have convicted a long list of terrorists, before and after 9/11, beginning with Ramzi Yousef, who bombed the World Trade Center in 1993, and Timothy McVeigh, who perpetrated the Oklahoma City Bombing in 1995; and running through Umar Farouk Abdulmutallub, who tried to blow up a plane on Christmas Day 2009, and Faisal Shahzad, who tried to detonate a bomb in Times Square in 2010. There have been over 500 successful terrorism prosecutions in Article III courts since 9/11. The military commissions at Guantánamo have convicted just seven – and one of those was vacated by the U.S. Court of Appeals for the D.C. Circuit.  In short, President Obama is right that the arguments in favor of keeping Guantánamo open – just like the arguments in favor of military detention of terrorists generally – are long on political rhetoric and kabuki dance but short on legality or wise policy.  We’ll have to wait to see which approach Congress prefers.

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