Peter Margulies, author of Law’s Detour: Justice Displaced in the Bush Administration, kicks off our discussion of S. 3707 with some very-thoughtful comments on future dangerousness and the bill’s bar on claims of post-capture vitiation. I have added some links but otherwise pass his note on unedited:
The bill’s position that post-capture withdrawal is irrelevant raises significant constitutional concerns. See subsection (2)(1)(E)(ii)(III) (“Limitation”). This subsection leans very heavily on the analogy between prisoners of war (POWs) and individuals who were part of Al Qaeda or the Taliban. The law of war permits detention of the former group for the duration of hostilities. However, in this respect the analogy between POWs and members of Al Qaeda and the Taliban is flawed.
First, the legal foundation is shaky for viewing future dangerousness as irrelevant. True, in Ludecke v. Watkins the Supreme Court said that the continued “potency for mischief” of an alien enemy after World War II was a matter reserved for the political branches. However, the Ludecke Court was addressing not detention of unlimited duration, but only the inherently limited interlude of “confusion and conflict” between the end of hostilities in 1945 and the drawing up of a formal peace agreement with the successor to the Nazi regime. Moreover, the United States did not seek to hold Ludecke indefinitely; it wished to deport him, and detention was incident to Ludecke’s removal. Finally, Justice Frankfurter noted twice in his opinion that the district court had found “substantial” evidence of the petitioner’s dangerousness.
In contrast with the shaky precedent that discounts future dangerousness, focusing on that element has a solid foundation. As David Cole observed in a recent California Law Review article, domestic detention traditionally has centered on areas such as civil commitment and medical quarantine, where future dangerousness is crucial. In more recent cases like United States v. Comstock and Kansas v. Hendricks, the Supreme Court affirmed the power of both federal and state governments to detain individuals with a history of sexual violence and an underlying condition that enhanced the risk of future violence. While past conduct was a necessary element of these statutes, so was proof of an individual’s future dangerousness. Detention on any other basis would merely have been punishment in another guise.
In addition, refusing to consider future dangerousness actually makes America less safe, because it fails to account for an individual’s post-capture radicalization. Suppose a detainee is a false positive, wrongly identified and mistakenly held. As a result of this experience, the detainee now persuasively avows that if given the chance, he will take action against Americans. The law should provide some means for holding this individual, at least until authorities can devise arrangements that will permit his safe release. However, S. 3707 does not provide this power, because it focuses solely on whether an individual previously was part of Al Qaeda or the Taliban at the time of his capture. Allowing consideration of future dangerousness would close that gap.
Finally, a structural flaw weakens the POW-detainee analogy: POWs’ allegiance to their government flows from a web of legal duties that do not bind a member of Al Qaeda or the Taliban. If a capturing force releases a POW, the POW’s own government can legally require that he rejoin the fray. The POW’s own inclinations are irrelevant. A detention authority merely reciprocates for the effect of these legal duties by deeming the POW’s inclinations to be similarly irrelevant to his release. In contrast, although Al Qaeda and the Taliban may have affective, social, or material leverage over a detainee, as non-state actors they lack legal authority. The government therefore lacks a basis for the irrebuttable presumption of S. 3707 that a member of Al Qaeda or the Taliban will reenter the fight.
Considering future dangerousness should not allow detainees to game the system. The government has ample legal means for assessing whether a detainee’s post-capture intent to withdraw is genuine. Congress could make the detainee’s continued membership a rebuttable presumption, as the legislation does elsewhere. Moreover, a court should carefully probe the credibility of a detainee’s assertion of intent to withdraw. The court may consider factors such as the detainee’s cooperation with the government, where the detainee has demonstrated his bona fides through concrete action. These measures should limit the number of false negatives, while ensuring that detention passes constitutional muster.
As I’ve said, I have no reservation about the executive branch being under an affirmative obligation to regularly review detentions for future dangerousness. I also agree with Margulies–and have argued–that in legislation authorizing certain prospective detentions, dangerousness should be a key element. I am skeptical, however, of applying it retroactively to cases in which all evidence collection took place years ago pursuant to very different assumptions. That seems like a bait-and-switch. I also think the question of vitiation of membership post-capture and the question of future dangerousness are analytically distinct, though obviously closely related. It’s possible, after all, that someone vitiated his relationship with the enemy after capture but nonetheless poses a significant danger. It’s also possible that someone poses no danger but cannot show that he quitted the Taliban. But Margulies raises an interesting problem. Is Sen. Graham buying himself a problem with the Supreme Court in cutting off this line of argument to detainees? And, if so, is the D.C. Circuit buying itself the same problem in suggesting that future dangerousness is irrelevant to the inquiry under current law?