|
COPYRIGHT 2008 Stanford Law School
INTRODUCTION
I. THE TRADITIONAL SEPARATION OF CRIMINAL AND MILITARY DETENTION MODELS A. Detention Triggers: Conduct Versus Status 1. Criminal prosecution and individual conduct 2. Military detention and associational status B. Procedural Safeguards II. EVOLUTIONARY PRESSURES A. Pre-9/11 Developments 1. Criminal justice and the preventive state 2. Laws of war and human rights 3. Terrorism and the crime versus war debate B. Post-9/11 Problems with the Traditional Models 1. Criminal model 2. Military detention model III. POST-9/11 CONVERGENCE A. Criminal Prosecution Moves in the Direction of Greater Flexibility 1. Criminalizing membership in terrorist groups or movements a. Section 2339B and group membership liability b. Conspiracy liability and the global jihad movement 2. Managing defendants' access to sensitive information B. Military Detention Becomes Proceduralized 1. The original post-9/11 detention regime and questions of process 2. Combatant status review tribunals 3. Convergence pressure in public opinion and the courts 4. The Detainee Treatment Act and constitutional habeas corpus 5. Military commissions IV. CONVERGENCE AND DETENTION REFORM A. Detention Criteria B. Procedural Safeguards 1. Counsel rights 2. Access to information 3. Limits on use of the fruits of interrogation 4. Publicity 5. Institutions of review CONCLUSION APPENDIX A: COMPARISON OF PROCEDURAL SAFEGUARDS AVAILABLE IN VARIOUS MODELS
INTRODUCTION
Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. (1) But despite numerous reform proposals, Congress has declined to address the more consequential issue of military detention without trial in any detail or to address the proper relationship among the three detention mechanisms. (2) The Supreme Court has continued its biannual consideration of detention issues by granting certiorari in Boumediene v. Bush, a case challenging the Military Commissions Act of 2006. (3) But there is little prospect that Boumediene will lay the detention debate to rest.
Potential models for terrorist detention span from the pure model of military detention at one extreme to the pure model of civilian criminal trial at the other, with military commissions somewhere in the middle, possessing features of both models. These detention models have traditionally differed along two dimensions: detention criteria (i.e., what the government must prove to detain someone) and procedural safeguards (i.e., the rights and procedures employed to reduce the risk of error in making detention determinations). The military detention model is the least demanding, traditionally requiring a showing of mere group membership in the enemy armed forces and providing alleged detainees with relatively trivial procedural protections. At the other extreme, the civilian criminal model is the most demanding, tending to require a showing of specific criminal conduct and providing defendants with a panoply of rights designed to reduce the risk of erroneous convictions.
Neither model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act. The traditional criminal model, with its demanding substantive and procedural requirements, is the most legitimate institution for long-term incapacitation. But it has difficulty achieving preventive incapacitation. Traditional military detention, by contrast, combines associational detention criteria with procedural flexibility to make it relatively easy to incapacitate. But because the enemy in this war operates clandestinely, and because the war has no obvious end, this model runs an unusually high risk of erroneous long-term detentions, and thus in its traditional guise lacks adequate legitimacy.
The main goal of this Article is to show how the two systems have moved to rectify their inadequacies and, in doing so, have converged on procedural and especially substantive criteria for detention. During the past five years, the military detention system has instituted new rights and procedures designed to prevent erroneous detentions, and some courts have urged detention criteria more oriented toward individual conduct than was traditionally the case. At the same time, the criminal justice system has diminished some traditional procedural safeguards in terrorism trials and has quietly established the capacity for convicting terrorists based on criteria that come close to associational status. Each detention model, in short, has become more like the other. Despite convergence, neither model as currently configured presents a final answer to the problem of terrorist detention. But the convergence trend does identify areas of consensus about detention criteria and procedural safeguards and highlights the outstanding issues that any serious detention reform must face.
We begin this Article in Part I by establishing baseline accounts of the criminal and military detention models as they have been traditionally understood, including a discussion of why these models have employed distinct detention criteria and procedural safeguards. Part II describes pre-9/11 developments that anticipated post-9/11 convergence, as well as the theoretical grounds for departing from both traditional models. Part III documents the resulting convergence of the two models along the dimensions of both detention criteria and procedural safeguards. Part IV uses the lessons of convergence to outline the task facing would-be reformers.
I. THE TRADITIONAL SEPARATION OF CRIMINAL AND MILITARY DETENTION MODELS
The traditional models for military and criminal detention have distinct theoretical foundations. Military detention aims to incapacitate in order to prevent future harm in battle, but it in no way implies condemnation of those detained. (4) Criminal punishment, by contrast, aims to condemn, to punish, to provide retribution for specific past conduct, and to deter future bad conduct. (5) Not surprisingly, the legal frameworks for detention under each model differs along two dimensions: the criteria defining those persons who are subject to detention and the procedural safeguards that serve to reduce the risk of a mistake in determining that a particular person satisfies those criteria. This Part summarizes those differences.
A. Detention Triggers: Conduct Versus Status
Associational status and individual conduct each play some role as detention criteria in both the criminal and military contexts. Military detention traditionally emphasizes status more than conduct, however, while the reverse is true in the criminal justice system.
1. Criminal prosecution and individual conduct
In the American legal tradition, criminal sanctions typically attach to one's conduct and not one's status or associations. There have long been limited exceptions to this rule. For example, Continuing Criminal Enterprise (CCE) (6) and Racketeer Influenced and Corrupt Organizations Act (RICO) (7) offenses involve a form of associational liability. These statutes criminalize participation in organizations that conduct illegal activity. But mere association is not enough for liability to attach in either case; for both CCE and RICO liability, prosecutors must demonstrate the defendant's commission of certain predicate criminal acts. (8) Criminal conspiracy, by contrast, requires no predicate criminal act. But it does require proof that the association took the form of an agreement to commit an offense, and hence can be distinguished from broader approaches to associational liability--at least as traditionally construed. (9)
An even closer brush with pure membership liability can be found in the Alien Registration Act of 1940 (Smith Act). (10) The Act is best known for its speech-related provisions that were frequently invoked during the Cold War. (11) A handful of Cold War prosecutions, however, turned on the membership ban in section 2(a)(3) of the Act, which made it a felony:
to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, and such society, group, or assembly of persons, knowing the purposes thereof. (12)
The Supreme Court upheld a prosecution under this provision in 1961 in Scales v. United States. (13) It reasoned that criminal punishment can be based on status as a group member as long as the government proves that the defendant (i) was an "active" rather than merely "nominal" member of the group (arguably making Smith Act liability more demanding than conspiracy liability) and (ii) specifically intended to further the group's unlawful ends. (14) Scales thus left open the door to further status-based prosecutions predicated on association, at least subject to a relatively strict mens rea requirement. Nonetheless, though section 2(a)(3) remains on the books today as the third paragraph of 18 U.S.C. [section] 2385, it rarely has seen action and remains best understood as an exception to the general rule in which criminal liability hinges on one's conduct rather than one's associations.
2. Military detention and associational status
The Supreme Court explained in a 2004 opinion upholding the detention of Yaser Hamdi that military detention until the cessation of hostilities, without charge or trial, is a "fundamental and accepted ... incident to war" designed "to prevent captured individuals from returning to the field of battle and taking up arms once again." (15) But who precisely is subject to this rule? The laws of war traditionally emphasize pure associational status as the primary ground for detention; individual conduct provides only a secondary, alternative predicate.
The point is clearest with respect to international armed conflicts, as that phrase is defined in Common Article 2 of the Geneva Conventions of 1949. (16) Article 21 of the Third Geneva Convention (GC III) authorizes parties to such a conflict to detain during hostilities any individual who qualifies as a prisoner of war (POW). (17) GC III Article 4(A) in turn specifies six categories of persons who fall under that heading. (18) Four of these categories are defined exclusively with reference to associational status: membership in enemy armed forces, membership in an armed force that professes allegiance to an unrecognized government, persons authorized to accompany such forces, and those who crew merchant marine vessels or civilian aircraft. (19) A fifth category blends an associational element (membership in a militia, volunteer corps, or organized resistance movement not incorporated into a party's armed forces) with a conduct criterion (compliance with a set of specific conduct norms including "being commanded by a person responsible for his subordinates; ... having a fixed distinctive sign recognizable at a distance; ... carrying arms openly; [and] conducting their operations in accordance with the laws and customs of war"). (20) Only one category--the relatively obscure levee en masse--defines POW eligibility purely in conduct rather than membership terms. (21) In short, membership in a specific group is a necessary condition for POW status in five out of six scenarios, and for the most part, it is a sufficient condition as well. Associational status in that sense is the primary triggering condition for military detention during international armed conflict.
The Fourth Geneva Convention (GC IV) governs the treatment of some persons in an international armed conflict who do not qualify as POWs but who nonetheless "find themselves ... in the hands of a Party to the conflict or Occupying Power of which they are not nationals." (22) GC IV recognizes the state's authority to intern such persons on security grounds in at least some contexts but does not purport to restrict the substantive criteria for determining who in particular may be detained. (23) The Commentary to the GC IV provisions makes clear, in fact, that the substantive grounds for internment decisions are left to the discretion of the detaining state and that the drafters anticipated internment on the basis of "membership" in dangerous organizations. (24)
The foregoing discussion concerned international armed conflicts. Some have questioned whether the laws of war also provide for military detention or preventive internment during non-international armed conflicts (NIACs). (25) We think it clear that they do. Common Article 3 of the Geneva Conventions of 1949 expressly refers to the fact that its protections extend to persons (including members of armed forces) who have become hors de combat as a result of any cause, including "detention." The drafting history of the Conventions confirms this conclusion. (26) Additional Protocol II (AP II) treats the issue similarly. Article 5, for example, specifies a variety of protections for any "persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained." (27) As explained in the commentaries to AP II, this language was intended to "cover[] both persons being penalty prosecuted and those deprived of their liberty for security reasons, without being prosecuted under penal law." (28) Consistent with these readings, state practice in the post-1949 era provides numerous examples in which international armed conflict-style detention frameworks have been used during NIAC. (29) It does not follow that the laws of war contemplate the use of any particular detention criteria during NIAC. On that issue, the laws of war seem silent, leaving the matter in the discretion of the state subject to any other applicable legal considerations.
B. Procedural Safeguards
The criminal and military models of detention traditionally have differed sharply with respect to the procedural safeguards each offers for determining whether a given person is subject to detention.
The criminal justice system invests defendants with very generous rights, including the requirement of proof beyond a reasonable doubt; (30) relatively strict evidentiary rules; (31) the Sixth Amendment Confrontation Clause; (32) the prohibition against ex parte evidence; (33) the requirement that the government dismiss its indictment in the event that a criminal defendant cannot receive a fair trial without having access to classified information that the government is not willing to share; (34) the requirement that the government disclose evidence in its possession that would tend to exculpate the accused (35) or impeach the government's witnesses; (36) the Sixth Amendment right to compulsory process to assist the defendant in obtaining witnesses and evidence; (37) the Fifth Amendment privilege against self-incrimination and other limitations on the criminal interrogation process; (38) the right to discovery of documents and other information in the government's possession if material to the defense, intended to be used at trial, or taken from the defendant; (39) the right to discovery of relevant statements previously made by the government's witnesses; (40) the right to a trial that is open to the public; (41) the right to a grand jury indictment; (42) the right to trial before "an impartial jury of the State and district wherein the crime shall have been committed"; (43) the right to a unanimous verdict; (44) the right not to be subjected to double jeopardy; (45) the right to due process of law; (46) relatively extensive opportunities for direct and collateral judicial review in the event of a conviction; (47) and, critical to all of the above, the right to counsel. (48)
Taken together, these rights reflect a systematic commitment to minimizing the rate of wrongful conviction. They operationalize the idea that it is better for some guilty persons to go free than for one innocent person to be convicted of a crime.
No such norm applies to military detention during armed conflict, and, for many reasons, the traditional military detention process provides fewer procedural protections. The exigencies of traditional armed conflict render many procedural safeguards difficult to implement in practice. Soldiers on the battlefield are not law enforcement officers and in most instances lack the time, resources, or training to collect evidence with an eye toward eventual use in court proceedings. Nor would we wish them to focus on such matters when engaged in combat operations. Relatedly, the error rate of relatively casual procedures in a traditional war is thought to be relatively low because captured soldiers are likely to be in uniform. Nor would there normally be any need to use classified information--let alone information capable of revealing the sources and methods of intelligence collection--to establish the grounds for detention in a traditional armed conflict. In addition, the desire to obtain the benefits of POW status ordinarily would encourage captured soldiers to concede their associational status, not deny it. Finally, an unduly burdensome procedural system that resulted in erroneous releases of enemy forces might undermine morale among the armed forces and create unwanted incentives for the denial of quarter.
For these and other reasons, law of war treaties mandate very few procedural protections for military detention. (49) GC III and GC IV do not address the question of how to determine whether a captured person is in fact someone subject to detention rather than an innocent civilian detained by mistake. The closest they come is in GC III Article 5, which specifies that a "competent tribunal" must resolve "doubt" as to whether a person who has committed a "belligerent act" warrants POW status, but does not explain what constitutes a "competent tribunal" or what procedures the tribunal must employ. (50) Additional Protocol I (AP I) also requires a "competent tribunal" to resolve POW status doubts, and additionally creates a rebuttable presumption that the detainee is in fact a POW. (51) But it says nothing about the tribunal or (with the exception of the rebuttable presumption) its procedures. (52) AP I also specifies that persons subject to arrest, detention, or internment have a right to be informed promptly "of the reasons why these measures have been taken," and that such persons should be released as soon as possible once the circumstances justifying such treatment have ceased. (53) But although AP I specifies a variety of procedural safeguards for those who are prosecuted for offenses, it does not provide procedures for detention and internment determinations. Similarly, the GC IV provisions authorizing internment of civilians for security purposes prescribe no particular safeguards other than periodic review of internment decisions. (54)
No universal practice supported by opinio juris--and thus no customary international law--has emerged to fill these gaps. (55) U.S. practice, for example, has varied considerably over the years. During the Vietnam War, the U.S. military's detention process was governed by "MACV Directive 20-5," promulgated by Headquarters, United States Military Assistance Command, Vietnam. (56) This regulation specified relatively elaborate procedural safeguards to be employed during the detention screening process, including a right to "reasonably available" counsel (including an appointed JAG counsel if necessary) and a right to be present other than during the tribunal's deliberations. (57) After Vietnam, however, the military adopted detention screening regulations that did not include comparable rights. The most recent iteration of those rules, Army Regulation 190-8 (AR 190-8), expressly contemplates the ex parte presentation of sensitive information and contains no right to be represented by an attorney. (58)
The practices of other states seem to vary as well. Canadian practice closely conforms to the AR 190-8 framework just described, (59) while British practice appears to track MACV Directive 20-5 by permitting representation by counsel and precluding the use of ex parte procedures. (60) Israeli practice, in the form of a 2002 statute known as the Incarceration of Unlawful Combatants Law, lies between these poles. Under this framework, a person may be detained by the military upon a finding by the Chief of the General Staff that there is "reasonable cause to believe that [he or she] is an unlawful combatant and that his release will harm State security." (61) The statute provides a rebuttable presumption that the person's release would harm state security if he or she "is a member of a force perpetrating hostile acts against the State of Israel." (62) That rule applies also to nonmembers who have participated, either directly or indirectly, in such a force's hostile activity. (63) Detainees are entitled to representation by counsel after no more than seven days, and have the right to review of the detention order by a district court judge within fourteen days. (64) A judge is not bound by the rules of evidence in conducting this review--except that coerced testimony is precluded--and is specifically authorized to receive evidence on an ex parte basis (including exclusion of detainee's counsel). (65)
The variability of these frameworks--depicted graphically in Appendix A--belies any claim that a specific set of procedural safeguards is mandated by the customary laws of war. Indeed, it would be difficult to show that any particular set of procedures used in actual practice reflects opinion juris rather than practical or political expediency.
II. EVOLUTIONARY PRESSURES
This Part outlines the evolutionary pressures on the traditional criminal and military models. It first describes pre-9/11 trends that presaged post-9/11 convergence, and then explains post-9/11 problems with both traditional criminal and military detention models that accelerated these trends toward convergence.
A. Pre-9/11 Developments
The post-9/11 convergence in military detention and criminal punishment had its roots in three pre-9/11 developments.
1. Criminal justice and the preventive state
Long before 9/11, prevention had become a significant goal of the criminal justice system. In the latter part of the twentieth century, a variety of legal developments--including the punishment of gang membership and recruitment, civil commitment schemes, habitual-offender statutes, laws permitting more juveniles to be tried as adults, community notification rules for sex offenders, and stricter sentencing regimes--created what some scholars described as a prospectively oriented "preventive state" that contrasted with the traditional retrospection-oriented "punitive" state. (66) Why this trend took hold when it did is not entirely clear, though public perceptions of heightened crime rates no doubt played a central role in creating the political conditions for passage of prevention-oriented legislation (just as political imperatives may have led politicians to direct the public's attention to issues of criminal law and policy). (67) Whatever its causes, the turn toward prevention in criminal justice provided a hospitable legal climate for the adoption of new statutes, or the creative interpretation of existing statutes, designed to facilitate early intervention for purposes of terrorism prevention.
2. Laws of war and human rights
The detention framework under the laws of war has always been oriented toward prevention. But in the thirty years prior to 9/11, the traditional military detention system came under pressure. A range of actors including scholars and the International Committee of the Red Cross argued that the more demanding standards of international human rights law (IHRL) should apply during armed conflict, especially in the context of non-international armed conflicts. (68) They argued in particular that relatively robust IHRL procedural safeguards applied to detentions in the NIAC context and were not displaced by the lex specialis of the laws of war. (69) At the same time, human rights considerations prompted reform movements within the law of war itself, as seen in the 1977 Additional Protocols to the Geneva Conventions. Among other things, the Additional Protocols extended legal protections to persons who take part in hostilities without qualifying for POW status under the terms of GC III Article 4(A). In particular, Protocol I gave POW status or other legal protections of the laws of war to members of "resistance" or "guerrilla" movements who purposefully do not distinguish themselves from the civilian population except when actually engaged in attack (and at times not even then). (70) The United States sharply resisted Protocol I and declined to ratify it in part for this reason. But most other nations ratified the treaty, and its enhanced legal protections for irregular fighters came widely to be viewed in some circles--though not within the U.S. government--as the baseline of legitimacy in the laws of war.
3. Terrorism and the crime versus war debate
Prior to the 1990s, terrorism was addressed primarily through the lens of criminal law. (71) Terrorist acts were criminal acts, subject to prosecution by whichever state might obtain custody of the perpetrators and assert jurisdiction over their conduct. This focus made sense at the time. Terrorists were thought to pose a relatively limited threat that did not rise to the front rank of strategic concerns. Conventional wisdom held that terrorist self-interest limited the scope of violence they might attempt to inflict. It was widely believed that terrorists aiming to draw attention to their cause--what Walter Laqueur describes as "propaganda of the deed" (72)--worried that going too far would alienate targeted constituencies. And state-sponsored terrorists were kept under control by national leaders who wanted to avoid retaliation. The harm that terrorists inflicted for the most part occurred outside the United States, moreover, thus reducing the domestic political salience of the issue.
As early as 1983, however, awareness that states were using nonstate actors as proxies to inflict significant harm on U.S. personnel overseas led some in the U.S. government to question a pure criminal law model and to endorse military modes of response to terrorism as an alternative. (73) The U.S. government used military force against terrorists in the 1980s, though not with an eye toward military detention by U.S. authorities of captured individuals or any other form of sustained engagement. (74) By the 1990s, experts and policymakers began to question the criminal law focus of U.S. counterterrorism policy more aggressively. (75) The 1993 World Trade Center bombing, the sarin gas attacks carried out by Aum Shinrikyo in Tokyo, and related developments indicated that at least some groups and individuals hoped to cause harm on a massive scale, and not merely to use a calibrated degree of violence for propagandistic effect. A few people in the...
Read the full article for free courtesy of your local library.
|
Bookmark this article
Print this article
Link to this article
Email this article
Digg It!
Add to del.icio.us
RSS
