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The Virginia NDAA Law: An Exchange

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Thursday, May 10, 2012 at 7:12 AM

The other day, David Rivkin and Cully Stimson had this oped in the Washington Post on the recently-passed Virginia law that seeks to prohibit state cooperation with detentions of American citizens under the NDAA. This produced an interesting exchange between Rivkin and Stimson, on the one hand, and human rights lawyer David Remes on the other.

In their oped, Rivkin and Stimson argued:

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

In response, Remes wrote in with the following:

My friends David Rivkin and Cully Stimson had an opinion piece in the Washington Post [recently] decrying Virginia’s new NDAA law, HB 1160 (2012 Virginia Laws Ch. 792). The new law disassociates the Commonwealth from military detention of citizens under § 1021(c) of the National Defense Authorization Act for FY 2012. (§ 1021(c) appears at 125 Stat. 1562). Rivkin and Stimson warn that the Virginia measure is dangerous and, indeed, that it “delegitimizes . . . the entire laws-of-war architecture.” The authors’ concerns are vastly overblown and reflect their own misreading of the new law. In fact, the new law is lots of bark and little bite. The sky’s not falling.

2012 Virginia Laws Ch. 792 provides as follow:

CHAPTER 792

An Act to prevent any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the detention of a citizen in violation of the United States Constitution, the Constitution of Virginia, or any Virginia law or regulation.

[H 1160]

Approved April 18, 2012

Be it enacted by the General Assembly of Virginia:

1. § 1. Notwithstanding any contrary provision of law, no agency of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, political subdivision of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, employee of either acting in his official capacity, or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty, shall knowingly aid an agency of the armed forces of the United States in the detention of any citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 1021) if such aid would knowingly place any state agency, political subdivision, employee of such state agency or political subdivision, or aforementioned member of the Virginia National Guard or the Virginia Defense Force in violation of the United States Constitution, the Constitution of Virginia, any provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code.

The provisions of this section shall not apply to participation by state or local law enforcement or Virginia National Guard or Virginia Defense Force in joint task forces, partnerships, or other similar cooperative agreements with federal law enforcement as long as they are not for the purpose of participating in such detentions under § 1021 of the National Defense Authorization Act for Fiscal Year 2012.

Rivkin and Stimson are right that HB 1160 sends a message of protest against NDAA detention. The message is that military detention of citizens is wrong. The President himself agrees. In his NDAA signing statement, President Obama pledged that his administration won’t hold citizens in indefinite military detention. HB 1160 is consistent with that pledge. It’s Congress that hasn’t gotten the message.

Here’s how Rivkin and Stimson describe the new law:

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

This is not a description of HB 1160. As its text plainly shows, HB 1160 prohibits state agencies, political subdivisions, and members of the Virginia National Guard or Virginia Defense Force (when on public duty), from knowingly aiding the U.S. military in the detention of citizens under NDAA § 1021, if providing the aid would knowingly place the state agencies, etc., in violation of other laws.

HB 1160 does not prohibit (1) aiding federal civilian authorities in detention activities, (2) aiding the military in matters other than detention, or (3) aiding the military in detention of non-citizens. Moreover, HB 1160 is explicit that its prohibition does not affect federal-state law enforcement efforts, or other cooperative efforts, “as long as they are not for the purpose of participating in [military] detentions [of citizens] under § 1021.” HB 1160 would not prevent the state trooper in the authors’ example from “detaining” the al Qaeda suspect.

In fact, the new law does not even necessarily prohibit state agencies, etc., from aiding military detention of citizens. HB 1160 kicks in only if (1) providing the aid violates other laws; and (2) state agencies, etc., provide the aid knowing that to do so violates other laws. I doubt any other laws prohibit providing such aid, and I believe it most unlikely that state agencies, etc., would provide the aid knowing that to do so is unlawful. Therefore, as a practical matter, HB 1160 appears to apply to a null set. Its only force appears to be an expression of protest.

For purposes of discussion, however, let’s assume that the new law flatly prohibits state agencies, etc., from aiding military detention of citizens.

Rivkin and Stimson state:

[HB 1160] is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding.

How does HB 1160 trench on the federal government’s war powers? The authors themselves allow that “the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda.” What funding conditions does HB 1160 violate? The Supreme Court has admonished that “if Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.” South Dakota v. Dole, 483 U.S. 203, 207 (1987) (citations omitted and internal punctuation altered). Congress did not do so in the NDAA detainee provisions. In fact, the NDAA detainee provisions assign the states no role.

The authors state:

[HB 1160] has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

What are the “dangerous symbolic consequences” of HB 1160? To be sure, HB 1160 symbolizes disapproval of military detention of citizens. But have we so lost our bearings that we consider disapproval of a government law or policy–including disapproval by the people of a state through their elected representatives–a threat to the Republic? Shall we bring in the thought police?

And what are the “dangerous practical consequences”? The military has no legitimate role in fighting al-Qaeda “on our shores”–I hope that’s common ground. In any case, the NDAA does not assign the military such a role. Further, the NDAA does not make military detention ”the primary policy option,” as the authors contend. The NDAA provides for military detention as one of four available “dispositions” of a person subject to the NDAA (see § 1021(c)) and to military custody pending disposition under § 1022(a)(1). NDAA § 1021(a) merely avers that the Authorization For Use of Military Force authorizes military detention.

Finally, the authors assert that HB 1160 “sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture.” Do the authors believe that a state’s disavowal of military detention of citizens is really so powerful? And the state’s protest addresses only one facet of the war paradigm. The war paradigm is in no danger of being unseated. On the contrary, I fear there’s no turning back.

In response, Rivkin and Casey write in as follows:

Our good friend, David Remes, not only misconstrues our arguments, but also appears to be arguing against himself.  To begin with, we make two sets of arguments about the problems created by Virginia’s HB 1160–symbolic and practical.  To take them in this order, we don’t see how any statute which “disassociates the Commonwealth from military detention of citizens”–David Remes’ characterization with which we take no issue–does not at the same time purport to delegitimize the laws-of-war architecture.  The essence of this architecture is not, of course, the notion that in time of war law falls silent, but rather that, when armed conflict arises and for as long as it continues, the detention and possible prosecution of captured enemy combatants, whatever their nationality, is governed under a body of law that is different from that governing the civilian criminal justice system.  This is an unexceptionable proposition and is well-established in the Supreme Court case law, both before and after the 9/11 attacks.

It is also, unfortunately, the case that this view is not shared by a number of human rights lawyers, including Remes, who continue to mischaracterize the detention of captured enemy combatants as an unconstitutional “indefinite military detention”.  While we do not wish to replough this well-churned legal terrain, it should suffice to point out the Supreme Court has stated clearly and repeatedly, most recently in Hamdi, that captured enemy combatants, of whatever nationality, can be detained, consistent with the traditional laws of war and long-standing state practice, for the duration of hostilities.  The fact that hostilities can last for a long time, or that nobody may know how long the conflict will last, does not make such a conflict indefinite.

Nobody has ever argued that captured enemy combatants can be detained indefinitely beyond the end of the armed conflict in which they were captured or that they can be detained solely for the purpose of obtaining actionable intelligence; the purpose of their detention is to prevent their return to the battlefield.  In this context, we frankly don’t understand Remes’ point, that Congress “hasn’t gotten the message,” since the FY2012 National Defense Authorization Act (“NDAA”) is entirely consistent with this binding case law.  Meanwhile, President Obama’s pledge, which David Remes praises, that he will not hold U.S. citizens in indefinite military detention, is nothing more than a policy statement, rather than a constitutionally-meaningful objection.   Even as a policy statement, it is misleading, since neither we nor anybody else we know has ever argued in favor of an indefinite military detention.

But, most importantly, Remes, opposing the military detention of captured enemy combatants, celebrates the fact that HB 1160 sends a strong symbolic message, aligning the Commonwealth with his position.  This being the case, we do not understand how he can take issue with our key conclusion that HB 1160 helps, albeit in some small measure, to delegitimize the laws-of-war architecture.  Unfortunately, we are not being Chicken Little.

Indeed, as Remes knows well, beginning soon after 9/11, we have seen a relentless effort to delegitimize not only military detention, but also the traditional norms governing the actual use of force on the battlefield, including such key laws-of-war-related issues as who is a combatant, what are the possible levels of collateral damage, what types of weapons can be used, etc.  This exercise, which has been aptly dubbed “lawfare” by Charles Dunlap, includes actions in the courts of law and the court of public opinion, political battles in Congress, and even bureaucratic skirmishing among the opposing factions within the Executive Branch.  Does Remes deny this?

Now, having finished with the discussion of HB 1160’s bark, what about its bite?  Here, we have never claimed that the bite is all that powerful, but it is real.  Part of the problem is that the Virginia law is so badly drafted that it is difficult to discern how it would actually work.  In this regard, it is not clear how the how well the language that limits the reach of the statutory prohibition only to certain situations–“knowingly” aiding the United States in military detention-related matters and only when doing so would amount to a “violation of the United States Constitution” (changes made by Governor McDonnell in the final days of the legislative process and hailed by him as something that has fixed the problems created by the previous version of the legislation)–would actually work.  For example, if a Virginia state trooper stops an al-Qaeda member, who establishes to the trooper’s satisfaction that he is a U.S. citizen, and that trooper also knows that the federal authorities have indicated that military detention is their preferred option for dealing with captured enemy combatants, would his failure to release such an al-Qaeda member (who, let’s assume, has broken no Virginia law) amount to a knowing aid to the federal military detention?  Quite possibly so, but one cannot be sure.

What about the question of whether such a detention would violate the U.S. Constitution?  The Supreme Court is clear, in our view, that military detention of captured enemy combatants is entirely constitutional, provided that they are given access to habeas corpus.  However, in the view of various human rights lawyers, including perhaps Remes, the Supreme Court has only blessed the detention of those combatants who are captured in the zone of “active ongoing combat,” e.g., Afghanistan, and not of combatants, who are captured in the United States or in places like Yemen, where, as far as the critics are concerned, the combat is not active enough.

We also would not be surprised if the critics claim that, because the Supreme Court has never directly addressed the question of how quickly habeas corpus must be made available to an enemy combatant held in  military detention, any detention regime that does not enable a U.S. citizen detainee to gain access to a lawyer and mount a habeas challenge within a period of, let’s say, 30 days is unconstitutional.  While we do not believe, given as the experiences of Hamdi and Jose Padilla, that the Supreme Court would be troubled by a more leisurely pace, the issue is not settled with absolute clarity.

How is a poor Virginia state trooper to resolve these quandaries?  Will he and his colleagues seek an opinion from the Virginia’s equivalent of the Office of Legal Counsel?  The bottom line is that the practical impact of this legislation is to foster uncertainty and create a substantial doubt in the mind of Virginia’s police, prison authorities, national guard, and all other state officials who might come into contact with enemy combatants as to what can and cannot be done.  To put it mildly, while this is not the end of the world, this is not a good thing.

This brings us to the last point pressed by Remes – is HB 1160 constitutional?  Here, a couple of points ought to be made.  First, while the NDAA does not impose any obligations on the States, numerous federal appropriation statutes,  and corresponding regulations promulgated by, most prominently, the Department of Homeland Security, have provided billions of dollars to the States subject to certain conditions, which include fulsome and wholehearted state cooperation in counter-terrorism tasks and missions.  Because HB 1160 prevents Virginia from complying with these conditions, Virginia would have to return these funds.  And to the extent that Virginia’s state officials have to certify compliance as a part of the disbursement of these federal funds, they may well be liable for the violation of various federal anti-fraud statutes.

Second, to the extent that Virginia law can be read to interfere with the activities of the “federalized” Virginia national guardsmen – for example, a guardsman serving in Afghanistan whose duty station is a joint intelligence collection center, tasked with trying to ascertain the whereabouts of a certain enemy combatant who also happens to be a U.S. citizen and whom the federal government post-Obama Administration is planning to detain rather than taken out with a drone – it is flat out unconstitutional.  To be sure, perhaps the drafters of the HB 1160 believed that this problem is cured by limiting the reach of this law to members of the Virginia National Guard “on official State duty”; if so, it is not clear that they have succeeded, because determining the precise status of the “federalized” National Guard is a fact-intensive issue.  Such guardsmen are within the federal military chain-of-command and benefit in certain circumstances from a variety of federal statutes that have been enacted to benefit members of the armed forces.  Yet, such guardsmen do not entirely lose the benefits available to them under State law and, for certain purposes, are still regarded as State employees.

The bottom line is that, as we have argued in the Washington Post and the Wall Street Journal has editorialized, HB 1160 has created a host of symbolic and practical problems.  It is a solution to a problem that does not exist and a bad law all around.