Detention: Law of

Drones, Domestic Detention, and the Costs of Libertarian Hijacking

By Steve Vladeck
Thursday, March 14, 2013, 4:28 PM

The more I reflect on last week's drone contretemps--and what effect the efforts of Senator Paul and his followers has had / may still have on U.S. policy--the more I have a profound and distressing sense of déjà vu. After all, it was barely 15 months ago that a hitherto-unheard-of coalition between what can safely be described as the left flank of the Democratic party and the right flank of the Republican party almost halted passage of the FY2012 National Defense Authorization Act. Recall that, back then, the issue was whether Congress was going to authorize military detention of individuals within the United States. After securing passage of section 1021(e) (a.k.a., the "Feinstein Amendment"), which provided that nothing in the NDAA altered existing law in such cases, this coalition largely stood down.

The same thing appears to be happening with targeted killings. Whether or not Attorney General Holder's second letter to Senator Paul actually answered the relevant question, it certainly appeared to mollify the junior Senator from Kentucky, who declared victory and withdrew his opposition to the Brennan nomination immediately upon receiving it. Thus, as with the Feinstein Amendment 15 months ago, the second Holder letter appears to have taken wind out of most of the libertarian critics' sails, many of whom (including the Twitterverse) have now returned to their regularly scheduled programming.

It seems to me that both of these episodes represent examples of what might be called "libertarian hijacking"--wherein libertarians form a short-term coalition with progressive Democrats on national security issues, only to pack up and basically go home once they have extracted concessions that don't actually resolve the real issues. Even worse, in both cases, such efforts appeared to consume most (if not all) of the available oxygen and political capital, obfuscating, if not downright suppressing, the far more problematic elements of the relevant national security policy. Thus, even where progressives sought to continue the debate and/or pursue further legislation on the relevant questions (for an example from the detention context, consider Senator Feinstein's Due Process Guarantee Act), the putative satisfaction of the libertarian objections necessarily arrested any remaining political inertia (as Wells cogently explained in this post on Senator Paul and the DPGA from November).

Thus, in the context of detention, the libertarian push to clarify the state of the law with regard to authority for military detention of individuals arrested within the United States both (1) didn't succeed on its own terms; and (2) obscured what Congress was doing in other cases. After all, recall that the Feinstein Amendment to the FY2012 NDAA did not actually clarify the state of the law, but rather ended up doing nothing more than codifying the decidedly unclear status quo. At the same time, the rest of the NDAA arguably expanded the government's detention authority with regard to non-citizens overseas; at a minimum, it codified the expansive understanding of such authority that the D.C. Circuit had read into the September 2001 Authorization for the Use of Military Force.

Likewise, in the context of drones, the libertarian push to clarify the circumstances in which the government can conduct targeted killings even on U.S. soil both (1) left open important ambiguities concerning when such force actually can be used; and (2) in any event, took all of the attention away from the pervasive use of such force against non-citizens overseas (which has resulted, according to Senator Lindsey Graham, in as many as 4700 deaths). On the detention front, all of the focus was on a domestic fact pattern of which there have been exactly two actual examples (Padilla and al-Marri), as compared to the thousands of cases overseas. And all of the focus on the drone front has been on a domestic fact pattern of which there have been exactly zero cases, again in contrast to the thousands of cases overseas.

Don't get me wrong: There are obvious political reasons why, in both circumstances, focusing on the government's authority on the homefront was more politically expedient--and commanded a greater and more bipartisan coalition of critics. But lest we miss the point, I think both cases highlight not just that libertarian hijacking tends not to accomplish much (other than grabbing headlines), but that it may in fact be counterproductive from virtually every other perspective--whether as a matter of civil liberties and human rights, democratic accountability, or even governmental efficiency.

The civil liberties and human rights objections are obvious: On the assumption that Congress only has a finite attention span on specific issues, spending so much energy trying to circumscribe authorities that have rarely (if ever) been used leaves little to no room left for the cases that actually matter. Not coincidentally, those cases tend to involve folks least likely to have a loud voice on the Hill--non-citizens outside the United States. And although it would be bad enough if Congress merely ignored those cases, in the detention context, at least, the attention to the homefront hid from view the extent to which Congress in the FY2012 NDAA embraced more authority for non-citizens overseas than it had previously. The same may yet happen when it comes to drones...

The accountability concerns are perhaps less obvious, but no less poignant: Rather than take advantage of a rare moment of bipartisan agreement to demand greater accountability from the Obama administration when it comes to drone strikes in general (for example, a public accounting of just how many there have been--or at least the countries in which they've been conducted), Congress only leveraged the government into turning over a small handful of memos specifically related to the count-on-one-hand cases involving U.S. citizens--and even then, only to the members of the respective intelligence committees (and not their staffs or their other colleagues).

But the cost to the government is also relevant. As last week demonstrates, government officials end up having to expend a remarkable amount of energy to either defend or reject the government's authority to undertake conduct it would seldom (or never) attempt, and to then endure and be forced to respond to criticisms because it had the temerity to suggest that there might be exceptional circumstances where such uses of force might be permissible.

Ultimately, there are difficult and important conversations to have about current and future U.S.  policy when it comes to, inter alia, targeted killings and detention. But if last week’s filibuster and accompanying public relations storm are any indication, the most visible libertarians in Congress don't appear to be interested in having them. That's certainly their prerogative. But in that case, we might all be better off if they let these conversations take place, rather than hijacking them and turning them into debates in which there is virtually no one on the other side--not because there's nothing to their points, but because there's so much more in what's not being said.