Detention: Law of: Legislative Development

Some Initial Reflections on Today's Due Process Guarantee Act Hearing

By Steve Vladeck
Wednesday, February 29, 2012, 6:01 PM

While the experience is fresh, I thought I'd share some reflections on this morning's Senate Judiciary Committee hearing on the Due Process Guarantee Act. [The SJC hearing page has copies of the witness statements (including my own), and should eventually have a working link to the webcast.] Off the cuff, I thought the hearing was very positive, and it was quite uplifting to hear Senator Feinstein speak so passionately about the importance of considered congressional deliberation on questions as momentous as domestic military detention.

Those who were less sympathetic (Senators Grassley and Graham and Steve Bradbury, formerly the acting AAG of the Office of Legal Counsel) offered variations on two arguments against the bill. Below the fold, I attempt to rehash (and respond to) those critiques.

Critique #1: The Bill Unconstitutionally Interferes with the President's Detention Power

This was the heart of Steve Bradbury's prepared (and delivered) testimony, and it focuses on the claim that, by requiring a clear statement before the government could detain a U.S. citizen or LPR apprehended within the United States, the bill would "remove completely from the President's discretion one fundamental attribute of military force that the President might determine is essential to exercise in a moment of national crisis." In other words, this is a variation on the Bush-era "Commander-in-Chief override" claim... Of course, the Non-Detention Act already does exactly this in the case of U.S. citizens (there, the debate is merely whether it requires a clear statement or not), and so, although Bradbury didn't say it, the necessary implication would be that it, too, is unconstitutional. Tellingly, though, President Nixon (who was hardly reticent about arguing for inherent presidential powers) signed the Non-Detention Act into law without a peep. By itself, that doesn't prove anything. But it seems like a fairly loud dog that didn't bark...

In any event, it's also worth noting that nothing in the DPGA stops the President from arresting terrorism suspects within the United States; as I suggested in my testimony, there are a number of existing authorities that would at the very least support short-term domestic incapacitation of terrorism suspects. The question is whether Congress has the power to require a clear statement for long-term incapacitation. I'm far more hard-pressed to see the Article II argument there.

Critique #2: The Bill is Bad Policy

Steve Bradbury's statement also made this point, which was at the core of Senator Grassley's and Senator Graham's remarks. In short, the argument is that, by requiring a clear statement before citizens or LPRs arrested within the United States can be subjected to military detention, Congress would be interfering with the President's power to (1) hold terrorism suspects as combatants under the laws of war; (2) gather intelligence from the detainee; and (3) protect classified information from disclosure.

Maybe I'm missing something, but these each strike me as non-sequiturs. To (1), nothing in the DPGA would stop Congress from providing authority to detain individuals arrested within the United States under the laws of war; the point of the bill is merely to require Congress to provide specific authorization for such detention--it's a clear-statement rule, not a ban. The same can be said for (3). Despite Steve Bradbury's suggestion that the bill appears to contemplate a "requirement to bring criminal charges," that's just not true. But even if that is the practical effect of the bill in the short term, I'm unaware of any examples of post-9/11 civilian criminal trials in which classified information was wrongfully disclosed by the defense to the public. Indeed, and in any event, as Bradbury himself admits, the government would have to present comparable evidence in a habeas proceeding challenging military detention, so this concern would be present with or without the DPGA.

To my mind, at least, one can say the same about point (2)--that the DPGA would make it harder for the government to gather intelligence from detainees. Assuming arguendo that the DPGA would tip the scales toward criminal prosecution, nothing in the DPGA affects existing law regarding presentment, Miranda, or speedy trial. Nor, as I noted above, would the DPGA realistically affect short-term detention authority. To be sure, there's a lot to say about these issues, and whether current law strikes the right balance between the government's ability to develop intelligence and the rights of putative detainees. But again, these issues would be present with or without the DPGA. All the DPGA would do is require Congress to be clear that it means to put military detention and military interrogation on the table with regard to citizens and LPRs within the territorial United States.

Indeed, and perhaps tellingly, none of the objections voiced by Senators Grassley or Graham or by Steve Bradbury identified specific problems that a clear-statement rule would pose standing alone. Instead, what I took away from their concerns was a fear that, if forced to (re-)consider the issue in light of a clear-statement rule, Congress might not provide the President with such military authority on the homefront. And if that's their objection, then it seems to me only to validate the entire exercise.