Detention: Law of

An Additional Thought on Al-Hajj

By Benjamin Wittes
Wednesday, June 8, 2011, 7:25 PM

I have only one point to add to Bobby's post earlier today on the opinion by Judge Royce Lamberth in the al-Hajj case. The D.C. Circuit has so far avoided addressing issues related to the voluntariness of detainee statements. While it has redirected the lower court judges on a variety of important questions related to the law of detention, it has maintained a conspicuous silence on voluntariness and coercion. The district court judges have moved toward a certain degree of uniformity of practice concerning how to handle claims of coercion: They require voluntariness as a condition of admissibility, and when a detainee establishes coercion--or, as in this case, where the government does not contest a coercion allegation--they import an attenuation analysis from the criminal law to see how long the taint of that coercion continues to affect statements made later under non-coercive circumstances.

Considerable variability among the district judges remain on coercion, but this basic framework seems pretty settled--except that it actually isn't well-settled at all. The D.C. Circuit has endorsed no part of this approach. And I, at least, wouldn't be at all surprised if--when the appeals court finally does face a coercion claim directly--it upsets this particular apple cart by adopting a different analytical lens. This remains a sleeper issue, one very worth keeping an eye on.