Problems with Military Detention

By Jack Goldsmith
Thursday, October 14, 2010, 4:53 AM

I have argued that the Executive branch should rely on military detention, not trial, for the GTMO population.  In practice, this is what the Obama and Bush administrations have been doing, with tiny exceptions, for almost nine years.  And Judges have upheld the practice for those enemy soldiers who fall within the AUMF.

But as time goes on, military detention may give rise to two problems.

The first is that the relevant war might end.  This is hard to imagine right now with al Qaeda, but less hard to imagine with the Taliban, either because, as Bobby recently discussed, U.S. operations in Afghanistan might wind down, or because the Afghan government and the Taliban might reach a peace accord.  When the relevant armed conflict ends, the justification for detention of soldiers in that war ends.  If a particular soldier remains a threat to the United States at that point, he can probably only be held if convicted of a crime at trial.  It is possible that the government could continue to detain a dangerous terrorist if it could convince a habeas court that he would re-start the relevant military conflict by re-attacking the United States if released.  It is also possible that Congress could authorize preventive detention over still-dangerous terrorists after the relevant conflict ends.  But these are long shots at best; trial or release is the likely option once the conflict ends.

The second problem is the opposite: that detention may last a very long time, and possibly forever.  Rick Pildes calls this the “specter of indefinite detention,” and argues that “[u]nless that specter is removed, no system of detention is likely sustainable.”  Pildes says there are “two options for dealing with the problem”: (1) “fixed-length terms of detention based on the seriousness and nature of the underlying acts, or the depth and seriousness of the individual's involvement in al-Qaeda or associated terrorist organizations”; and (2) “a credible system of periodic hearings to determine whether a detainee should continue to be held” on the ground that the individual “remained so dangerous that his continued detention was a matter of national security.”  He adds that the fixed terms and periodic review approaches could be combined.  “Instead of being automatically entitled to release after a certain number of years, a detainee could instead be presumptively entitled to release,” Pildes argues.  “A hearing to assess whether he remains a threat could be held. The structure of those hearings could be tied to how strong the presumption of release ought to be.”

I agree with Pildes that credible periodic review is vital to the legitimacy of military detention.  Curtis Bradley and I once argued (2123 ff.) for Pildes’s option (2), but Pildes’s combined approach may be better.  It forces the government to make distinctions about degrees of dangerousness and to tie those degrees of dangerousness to the justification for detention length.  And the presumption of release will effectively place a heavier burden on the government to show that that less dangerous detainees remain dangerous enough to hold.  I don’t think that the fixed-length term taken alone is a good idea, however, precisely because there might be good reason to think that a detainee remains dangerous, and thus legitimately detainable, after his term expires.

In any event, the prodigious resources the Executive branch currently spends prosecuting with great difficulty a tiny few of the Guantanamo Bay terrorists would better be spent working with Congress to strengthen and further legitimate the detention power in ways that Pildes discusses.  This is unlikely to happen, however, because so many of the President’s supporters strenuously oppose tinkering with the detention system in a new statute on the ground that to tinker with it is to further legitimate it and make it permanent.