Melded Approaches to Terrorism Detention and Trials

Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials.  They call for an approach that mingles aspects of criminal law and armed conflict law.  They emphasize the need for a legislated system.   (It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this – but regardless of where you start, I think this is an excellent discussion.)  A bit from the opening:

Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional “laws of war.” While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government’s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government’s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model – like the crime model – was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is “at war” and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.