Scrivener's Error: Warped Weft

The Detainee Trilogy

originally posted 28–30 June 2004

Like Gaul—or, more to the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Before getting started, though, the decisions are still going to leave considerable fragmentation behind. There was a clear majority vote in each case: that Hamdi must be given access to the courts; that Padilla must be refiled in South Carolina, with no decision on the merits, for lack of jurisdiction in the Southern District of New York; and that Rasul and other detainees at Gitmo have the right to challenge their detentions in court. However, only one of these decisions (Rasul) provides a clear and unmistakeable majority rationale; the spate of concurrences and mixed opinions undercuts the authority of the decision in those cases. If the government can take anything positive away from these matters—and, contrary to the media, I think none of these came even close to validating a seriously contested government action—it is that the fragmentation indicates that it just might prevail at trial.

That, in the end, is the real meaning of today's two hundred pages: The detainees have another chance to lose. Or to win; but it's arguable that the fact of their detention is a loss, as they will have lost their freedom for a nontrivial period of time even if they ultimately win.

I. Civil Procedure

The most obvious civil procedure issue in the Detainee Trilogy is "jurisdiction." The Court held that US courts do have jurisdiction to hear each of these challenges; Padilla must refile his challenge, though, because he filed it in the wrong US court. This latter holding, though, bears much more careful consideration than I can give it quickly. It presents an interesting dilemma facing anyone in custody: Who and where do I sue for release? Mr. Padilla chose to sue the Secretary of Defense in the Southern District of New York. Padilla sued in New York because that court had issued the material witness warrant that resulted in his arrest at O'Hare, after which he was held in New York for a time. Padilla filed a motion objecting to this detention. The President then designated Padilla an enemy combatant and transferred him to the USN brig in Charleston, South Carolina. Padilla's attorney then filed a habeas corpus petition in New York, where the matter remained pending.

The Supreme Court held that Padilla should have filed (a) naming the brig commander and not Secretary Rumsfeld (b) in South Carolina. If one follows the precedents and statutory language blindly and literally, I am afraid that this is a fairly obvious result with this Court. The "immediate custodian rule" mandates (a). This crabbed interpretation actually comes from some rather strange case law interpreting sovereign immunity rules. The particular set of cases in question could have benefitted from Judge Posner's "pragmatic" approach, because they represent an attempt through a formalism to both allow for relief and respect "sovereign immunity." This particular rule does not change the identity of those who will actually defend the action; it changes only the names on the petition. Unlike the ordinary lawsuit, in which naming the correct defendant really is required for substantive justice, a habeas corpus petition is actually pointed at a broad governmental action. Nobody can reasonably pretend that Commander Marr is sitting outside Padilla's cell with a 9mm Beretta pulling guard duty. Instead, she is a facility commander. In reality, though, she does not have the authority to release Padilla. She has the power to do so; but then, so does every guard in the cell block. Under the logic of the "immediate custodian rule," given the unique way that military prisons and detention facilities are organized, the "correct" respondant is not Commander Marr, nor Secretary Rumsfeld; it is instead the Judge Advocate General of the service that controls the facility in question. Frankly, this whole issue is just an invitation to meaningless motion practice. It's an area of procedure that desperately calls for fundamental rethinking; but, as it stands, it's the law.

The proper location for Padilla's suit is a much closer question. Padilla was taken into custody in Chicago, then sent to New York. He is currently being held in South Carolina. Forcing the habeas corpus petition to South Carolina, when the substance of anything related to his custody will be heard in New York, is the worst kind of substitution of form for substance. Immediately upon the government receiving indications that the judge in New York intended to rule against it, Padilla was moved to a presumably much more government-friendly jurisdiction: South Carolina, in the Fourth Circuit. Given the Fourth Circuit's record on civil rights and criminal law in the last two decades, this is awfully close to unethical forum shopping. Further, there is little or no connection between the brig in Charleston and the ongoing investigation or the ongoing trial. In order to actually interrogate Padilla, either the investigators must come to him or he must be sent elsewhere. Thus, although the Court's decision to send this to South Carolina is defensible, it is even less logical than the "immediate custodian rule"'s designation of the "correct" respondant. Since habeas corpus is supposed to be protection against arbitrary government action, it seems rather ironic that the government can take arbitrary action to manipulate the forum. It's not a pleasant irony. It's not particularly funny, either.

So, then, Padilla has to go to South Carolina and refile. I would invite the judge who hears the matter to accept it on the briefs and confirm the Southern District's ruling. It would be within his discretion to do so, precisely because the Supreme Court refused to rule upon the merits and the merits were fully litigated previously in a court competent to hear such matters. Both the government and Padilla deserve a rapid decision on the merits. Of course, that's not what the government wants.

The civil procedure questions in Rasul and Hamdi are much more straightforward and much less controversial. In both of those cases, the Court held that US courts may hear challenges to detention. This is a resounding defeat for the Bush Administration. Bush didn't even want to play the game. He still gets to do so with tremendous advantages over the defendants; but this is one of those instances in which the refusal to play with others says more about the strength of the substance than the Administration might wish. The old "we don't want to set a precedent" is a smokescreen, because it goes the other way, too: The continued detention itself sets a precedent, because regardless of the authorization to use military force we are not in a state of war. Absent the state of war, the government's procedural posture falls on its face, because "military necessity" is not a valid rationale for detentions inconsistent with criminal law and procedure. Sorry, guys, but this particular formalism is required not just by the Constitution (requirement to formally suspend habeas corpus through Congressional action), but by at least six treaties. Considering how many wars arise or are extended by failure to communicate, this particular formalism—placing the opponent on unambiguous notice of the failure of nonviolent means to resolve the dispute—seems much more important than most.

The only potential controversy is the Gitmo question: Is Gitmo, which is outside of US territory, sufficiently within US control to allow jurisdiction of US courts? Frankly, if it's sufficiently within US control to make the authorities comfortable keeping prisoners there in indefinite confinement, it's sufficiently within US control for the appropriate US court to have jurisdiction. This isn't even a close question. Look at it this way: The prisoners are clearly within somebody's control; that's what "prisoner" and "detainee" mean. They are either within US control, or the control of somebody other than the US. Who might be able to enforce a demand to release the prisoners/detainees without using force to conquer the physical location of custody? The US.

Sometimes logic does have a place in civil procedure.

II. Government Power

The critical distinction between what actually happened in the Detainee Trilogy and what the media already has said (and no doubt will continue to say) is that no detainees were ordered set free. All that these decisions did was deny absolute, unfettered executive discretion short of a declaration of war. Instead, a detainee does have the due process right to challenge the justification for his/her detention unless Congress specifically strips a class of detainees of that right, presumably by suspension of the writ of habeas corpus.

The most critical language on the admittedly difficult (at least, in a given case) balance between justified and unjustified detention occurs in Hamdi:

[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

Hamdi, slip op. at 23–24 (citations omitted; emphasis added). There is, or should be, more than a faint echo of the civil rights movement here. It bears consideration that J. Edgar Tutu believed that Malcolm X and Dr. Martin Luther King, Jr. were equally dangerous and both probably communists. All that these decisions require is a chance to be heard by an impartial decisionmaker; only the dissents would reach the actual merits (as discussed in part III of this rather extended diatribe). Padilla and Rasul reach the same conclusion, albeit not so clearly or elegantly. As Justice O'Connor continues:

But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

Id., slip op. at 25, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164–65 (1963) (a "suicide pact" case—see below)).

Even the most "liberal" member of the Court avoids reliance on substance. Instead, he restricts himself to procedural remedies:

Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners' claims.

Rasul, slip op. at 17. This is not the Court saying "Executive branch, you're out of line, release them now!" This is instead the Court saying "Executive branch, you might make a mistake here and there, so detainees have the right to present evidence that they're being wrongly held." And that is all.

I must vehemently disagree with the Perfesser's invocation of the out-of-context "suicide pact" language.

Apparently only the Supreme Court is "free to do whatever they want… without a check." If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution. It is nothing short of judicial tyrrany.

Exhibit A in opposition: the United States Sentencing Guidelines. As ill-founded as they are, and as poorly implemented as they are, I do not think them unconstitutional per se. Exhibit B in opposition: the Rules Enabling Act—both positively and negatively. Exhibit C in opposition: Snepp v. United States, in which the Supreme Court refused to second-guess the executive's designation of certain material as of national security interest despite some serious questions on motivations for that designation. I won't go on with further examples, but they exist in multitudes, as Justice O'Connor recognizes:

[T]he position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.

Hamdi, slip op. at 29. In other words, choose your poison: excessive court involvement or excessive deference to the executive. Given that the executive is poorly equipped to deal with retail instances and the courts are poorly equipped to deal with wholesale foreign policy, requiring a hearing seems the best—indeed, the only—balance. Tyranny happens when anyone is given absolute, unreviewable, unfettered discretion. As difficult as it may be to amend the Constitution, it's not impossible; and that is more than sufficient review of the Court. After all, getting the Court to review a decision isn't exactly easy, either, as Newdow and Cheney more than adequately demonstrate!

There are two major problems with the "suicide pact" arguments, both of which are fatal. Rhetorically, they fail when concerning an outsider's actions, because that's not suicide. An accurate assessment would be something like "the Constitution does not mandate refusal for self-defense." Suicide is something that one does to oneself; not taking steps to prevent someone else from assault is, by definition, not "suicide." If there is a "suicide" possible in this context, it is the denial of the rule of law in favor of unfettered personal discretion of executive-branch decisionmakers. Substantively, these arguments fail because the failure to defend is not inherently fatal. It might cause change; but then, change is a constant. The change might be unacceptable; but then, accidents of nature can cause unacceptable change, too.

III. Military Necessity

The decisions in the Detainee Trilogy depend almost entirely upon their procedural contexts; the only serious considerations of the merits were in dissenting (or mixed concurring-and-dissenting) opinions. Thus, the first two segments of this discussion concentrated on procedural aspects: venue and jurisdiction, and the scope of the habeas corpus power. That brings us to the shrivelled third leg: the substantive justification for detention.

It is shrivelled not just in the Court's decisions; it is shrivelled in reality. Ironically, the detainees and their counsel appear to have shown a great deal more respect for classified data and operations than has the government. None of the leaks and slips have come from the defense side of the v.; instead, the revelation of the identity of Hamdi's proposed witness now being held overseas (but not at Gitmo) came from the prosecution's papers. What this implies about the real justification for classifying the data in the first place is left as an exercise for the cynic student. (Gee, can you tell that I spent a lot of time as an undergraduate in math and science classes?)

However, we don't need to go there. The particular details pertaining to a particular individual matter if, and only if, the theoretical foundation for continued detention has merit. So, then, what is the theoretical foundation? A number of rationales have been proposed, falling into three distinct classes (notice that "three" seems to be a magic number?):

  • Continued interrogation. Many of the detainees have been in custody for two years. An experienced investigator/interrogator will tell you that the probability of obtaining further information that one has not already obtained two years—or even one year—after beginning interrogation is vanishingly small. Further, given the rapidly changing nature of the terrorist threat, the value of such stale information must also be suspect. Finally, and perhaps most importantly, there's the whole issue of torture lurking in the background. Good interrogators know that torture results only in the spouting forth of statements; it does not necessarily result in the spouting forth of truth. And if one must resort to torture, that implies that one has no independent ability to verify (or refute) what one catches in the bucket.
  • Continued danger from individuals in detention. There is a bit more validity to this assertion, but it still depends upon assuming that a terrorist network would be so stupid as to use someone who is almost certainly under continued surveillance—and may well have been flipped while in custody. That does not, of course, rule out independent action by former detainees. The problem with this assertion, though, is the assumption that the particular detainees cannot be controlled or observed at all after release. No surveillance system is perfect; however, the probability of damage being caused by a previously unknown actor is far, far greater than that for a previously detained actor, if only because the fact of detention will probably scare the living daylights out of many of them. A few could well become unalterably opposed to the US and ready to do anything for vengeance; but continued detention is as likely to do that to family members as to detainees!
  • Communication with terrorists at large. Frankly, this is laughable. The best way to screw up a network of nonprofessionals is to salt it with credible disinformation, and released detainees are a perfect vector for such information. The terrorist organizations know this. Further, appropriate surveillance of released detainees will provide valuable information on communication methods actually used by active terrorist organizations—even if we can't spot them communicating, because the negative inference is equally valuable.

Thus, I have a great deal of difficulty accepting the theoretical basis for continued detention, and for most of the detainees I would never reach the particular circumstances.

One might argue that, because the particular circumstances of an individual just might validate continued detention (regardless of its theoretical basis), that specific individual should be subject to continued detention. Assuming arguendo that this is true, what does it say about the proper burdens and procedure? Does it say that blanket detention is proper, or that a particularized showing for a particular individual is proper? There might be some middle ground in there, resting primarily upon the kind of evidence that one can/should accept; but procedurally, the strong implication is that the government should be forced to apply for continued detention, not that the prisoners should be forced to apply for release. The application for detention should be reviewed by someone who is not organizationally involved in the detention, such as a judge. Yes, judges do have and can obtain security clearances; after all, there do not appear to have been any leaks from the FIS court! In fact, that seems to be the perfect forum: the administrative procedures are already in place, the judges already have clearances and some familiarity with intelligence theory and procedure, and at least some advocates have appeared before it.

*  *  *

So, then: What does the Detainee Trilogy really mean in the end? It is certainly too early for a definitive explanation, particularly as the government has yet to provide any substantive justification for continued detention. Instead, the government has thus far relied upon its purported inherent powers to secrecy in the conduct of foreign and military affairs. The Court rightly objects to the secrecy part of that reliance; but thus far it has not ruled upon the substance. Judicial economy indicates that it should have; but, to do so, the lower courts in the Fourth Circuit would have had to make a factual record sufficient for the review, and it appears from the final opinions that they did not. In a sad sense, then, the judiciary sabotaged itself. It would have been within the District Court judge's discretion to force a much more detailed and extensive factual submission before ruling. This is, in some respects, parallel to the problems with Cheney that I discussed at length last week: (1)  (2)

One obvious objection to my conclusions is that I essentially would require the administration to get good lawyers who have junked their rubber stamps involved in making policy. The military seems to manage acceptably with lawyers reviewing target lists prior to planned operations. I just don't see the harm here—particularly as so many policymakers are lawyers, even if not engaged in the practice of law before assuming their policymaking duties. That's not to say that lawyers must dominate; it is only to say that post hoc justifications, as the Bybee Memo appears to have been, are often counterproductive. The irony that many policymakers distrust lawyers, when in this context competent lawyers would be preaching a certain level of distrust themselves, is a bit much to swallow easily; and I bet that the Australian, British, etc. families of some of the detainees can't even go that far toward compromise.

As an irreverant last remark, I've been referring to these opinions as the Detainee Trilogy for two reasons. First, they really can't be considered in isolation, and there's more than adequate experience in treating related opinions together (Slaughterhouse Cases; Steelworkers' Trilogy). Second, and perhaps most important, it is virtually certain that at least one of these matters is going to end up back in front of the Court, and then we get the fun of assigning numeric identifiers to previous opinions. (If that had been done in Alvarez-Machain, by my count we'd be in the high forties or low fifties.) Particularly since the various cases may well generate different numbers of opinions, and reach the Court in different postures, it seems to me that developing a consistent moniker now is a better option than waiting to see what happens.

« ~ »

Let's think a little more on the substantive effect of the Detainee Trilogy. Phil Carter, of Intel Dump, has an interesting essay on Slate that, I'm afraid, goes a bit too far in accepting the administration's position on a few relevant principles. First, he notes:

[I]f the Guantanamo detainees receive the full right to petition for a writ of habeas corpus in federal court, and that right includes access to counsel to assist with the filing of the petition, then the court may have unwittingly opened a new front in the war on terrorism. First, this will affect interrogations, as discussed above—detainees who talk to their lawyers will be less likely to spill their guts during interrogations. Second, detainees may come see filing a habeas petition as part of their duty to resist American captivity, just as U.S. soldiers are duty-bound to resist their captors under the Code of Conduct "by all means available." In a worst-case scenario, every single Guantanamo detainee will now seek the writ of habeas corpus, along with every detainee now held by the United States in Iraq or Afghanistan.

"Taking It to the Trenches" (29 Jun 2004). Note that the factual predicate for this position is that a majority—or, at the edge, a large minority—of the personnel actually detained are also actually terrorists. This is a classic bootstrapping situation: we cannot know the answer without a disinterested factual investigation into the complete circumstances of detention, which is precisely what the government opposes. In other words, we're supposed to take the Administration's designation of individuals on faith. The military's own credibility in this regard has not been helped by this Administration's record of overstatement.

Of more interest is the assertion that "detainees who talk to their lawyers will be less likely to spill their guts during interrogations." As a factual and doctrinal matter, this is hardly universally accepted, and where accepted at all it seems not to apply to Islamic interrogees. Breaking someone's resistance the second time is usually easier than breaking it the first time; and if that first breakdown was voluntary, in the form of cooperating with the lawyer, so much the better. Then there's the whole "imminent physical harm" exception to attorney-client privilege; but, of course, nobody likes to discuss that, because it seriously undercuts the rationales for both sides in this little argument.

I cannot let the reference to the Code of Conduct pass. Perhaps this is just different service cultures; but the Air Force treatment of the Code of Conduct is rather different from the Army, if only because the treatment and nature of POWs who were on aircraft was quite a bit different from soldiers captured on the front line in Vietnam. "By all means available" is not unqualified, and most importantly is treated as an aspiration and not a duty. Why? So that an individual who does break is not broken permanently. When that article of the Code was treated as an absolute duty, prisoners believed that they were failures once broken and tended to not resist any further, figuring that they could already be court-martialled for breaking. Don't laugh too quickly—that is exactly what happened to some POWs taken in Korea and the early part of Vietnam. Given that officers fear courts-martial more than do enlisted, it shouldn't really surprise anyone that the officers shot down in aircraft had more fear of this than infantrymen taken in firefights. The irony that the officers were more likely to have information of continuing value is not a pleasant one.

In a somewhat related matter—one that, if nothing else, proves that the predicate for habeas corpus actions does in fact occur in the "war" on terrorism—a NYT article discusses the efforts of an FBI agent to get a non-terrorist from Nepal released. This is on top of the tyrannical immigration hearing system, and leaves one wondering whether the inscription on the Statue of Liberty retains any meaning.

Law and reality in publishing (seldom the same thing!) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

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Warped Weft

Essays in Warped Weft are consolidated from Scrivener's Error with only formatting corrections (and the occasional typographical correction).