A Reply to Steve Vladeck

By Benjamin Wittes
Tuesday, November 23, 2010, 10:54 PM

It will come as a surprise to nobody who has followed the many exchanges between us Lawfare folks and Steve Vladeck that Steve has written a thoughtful objection to Jack and my oped and series of posts arguing against bringing Guantanamo detainees to trial. I will not attempt to summarize Steve's post here; I commend readers to the real thing instead. But Steve makes several thematically-related points that I wish to address specifically:

First, Steve objects to framing continued military detention of high-value Guantanamo detainees as a "middle ground" between federal court trials and military commissions--saying that,

Say what you will about the merits of [Goldsmith's and Wittes'] view . . . but it's difficult to see how it is in the "middle" of anything. Wartime detention of enemy belligerents and criminal prosecution--even of alleged war criminals--serve wholly distinct goals. To offer the former as an alternative to the latter is to assume that criminal prosecution in any of these cases is not actually about establishing guilt and/or imposing punishment, but is merely a pretext for incapacitation.

I am actually unaware of ever having framed non-prosecution as a middle ground position. Jack and I have argued that the legitimacy of military detention represents common ground between the Obama administration and its conservative critics--as well as common ground between the executive branch, Congress and the courts. But I don't think of it as a political middle ground. Rather, I consider it to be politically out of the box--something of a political non-sequitur. The left argues for trial in federal court; the right argues for trial in military commissions. Jack and my point is that there is an unexamined shared assumption here--that trial of some sort is necessary--from which we dissent.

Moreover, I wholly agree with Steve that military detention and criminal prosecution serve "wholly distinct goals." My point is that the shared assumption of left and right is privileging the wrong goal--punishment--at considerable risk to the more important goal: incapacitation. The point is complicated by the fact that criminal prosecution can serve the interests of incapacitation by creating great legitimacy for it. But it can also greatly erode incapacitation by, in the event of an acquittal, making it extremely difficult politically to continue holding a suspect. It's one thing to take such risks with low-level twits like Salim Hamdan and David Hicks. It's quite another thing to do it with high value detainees.

To put the matter simply, I don't want to use the criminal justice system as "a pretext for incapacitation." I don't think we need pretext for incapacitation. We have, rather, a lawful basis for incapacitation already, and I don't see much reason to undermine it (politically, if not legally) by introducing the possibility of a criminal acquittal of the sort that would normally convey freedom.

Separately, I also think Steve misstates the matter when he says that:

even Goldsmith and Wittes would surely concede that the category of individuals who are properly subject to detention under the 2001 Authorization for Use of Military Force (AUMF) is far smaller than the category who can be prosecuted in the civilian courts for terrorism-related offenses. We may well disagree over just how much smaller the detainable category is, but that's just a detail. The larger point is that there will still be plenty of terrorism cases in which detention in lieu of prosecution is not an available option.

To be sure, Jack and I are not arguing against terrorism trials in general. We are arguing against terrorism trials, as we put it in the oped, "for a dwindling group of Guantanamo detainees." Of course there will still be plenty of terrorism cases for which trial, not detention, presents the appropriate legal tool. The question is whether trial always presents the only appropriate tool, even when prosecution risks undermining the legitimacy of a long-term detention which is, from a security standpoint, a non-negotiable necessity.

Moreover,  it is not simply true that the category of people subject to detention under the AUMF is "far smaller" than the category prosecutable in federal court. It is, in reality, at once smaller and larger. It is smaller in the sense that the substantive sweep of federal criminal law is far broader than the substantive sweep of the AUMF (which is limited to those who planned September 11, the states that shielded them, and their co-belligerents). But it is at the same time bigger in the sense that the evidentiary threshold in military detention is much lower than in criminal prosecutions, thus properly enabling the detention of people who could never be convicted of crimes. With respect to the Guantanamo population, this latter point is far more important than the former. Only a few dozen Guantanamo detainees are even plausibly prosecutable in either federal court or military commissions; a much larger set is lawfully detainable under the AUMF.

Steve makes his strongest point, and stabs and Jack and my Achilles heel, when he argues that

the larger the detention regime grows, the more unsustainable it will necessarily become over the long term. Yes, the laws of war lend sanction to the government's power to detain those properly determined to be enemy belligerents until the "cessation of hostilities," but such detention was never intended to be perpetual. And in any event, there will come a point (if it hasn't already arrived) where it defies logic to continue to "incapacitate" individuals who can no longer realistically pose a threat to U.S. national security, even if they might have at some point in the past.

Steve is correct that there will come a point in the life of the conflict in which the detention power conveyed by the AUMF will become incoherent. The further away the conflict migrates from core Al Qaeda, the less relevant to it the AUMF will become. Moreover, the very concept of the end of hostilities makes little sense in the context of a war in which the detainees do not simply represent the enemy military but are themselves the enemy. If hostilities were eventually to end and we released our prisoners as a consequence, they would simply renew the hostilities. For these reasons, among many others, I have long argued for tailoring the detention regime for the specific circumstances we face, and I have argued against indulging the pretense that military detention can simply be deployed unadapted for the purposes of long-term terrorist incapacitation. In particular, I do think the regime should pay more attention to individual dangerousness than it does under current law. And I also don’t particular resist the possibility that eventually, if the AUMF becomes altogether attenuated, we may face some hard choices between releasing certain detainees and bringing them to trial under conditions that are still less advantageous than they are today. Those are all weighty considerations. But to me they militate towards the refinement and adaptation of our detention system more than towards hastening people to trial whom we have no intention of releasing irrespective of trial verdicts in their favor. I do not pretend the course Jack and I have urged is without risk—merely that its short- and medium-term risks are far less than those associated with trial in any forum.