The Taste of Crow: Okay, I’m Alarmed Now

By Benjamin Wittes
Tuesday, December 12, 2017, 8:30 AM

More than two months ago, I wrote a piece counseling against panic in the case of the John Doe U.S. citizen detainee being held by the military in Iraq. Steve Vladeck responded that I was being complacent. In recent weeks, Vladeck has taken to taunting me about whether I’m alarmed yet. He tweeted this, for example:

And on last week’s National Security Law Podcast, he said something similar.

I’ve been busy with other things, and I confess that I’ve been secretly hoping to wake up one morning to learn that John Doe has been transferred and that the military had thereby mooted Steve’s taunting. I was hoping I could write a piece when that happened saying that while it took longer than I expected, things had more or less played out as I expected—and that my lack of alarm was therefore justified.

But no. It has happened. And it’s time for me to acknowledge that yes, I’m alarmed now. I prefer my crow stewed, but I’ll eat it in whatever form Vladeck prepares.

The reason for my change of heart is two-fold. The first and less important factor is the simple passage of time. When Vladeck and I had our initial exchange, John Doe had been held for a month. And the short-term transitory detention of a U.S. citizen captured in a combat theater while the government figures out what to do with him just doesn’t bother me very much. I expected the detainee to be transferred either to law enforcement or his home country quickly, and as long as that happened, I wasn’t too fussed. But as I wrote at the time, “the case for alarm certainly strengthens the longer the current situation persists.”

Two months later, the case for alarm has certainly strengthened. John Doe has not shown up in court in the United States. Nor has he been transferred out of U.S. custody. The detainee has not even been named. And most importantly, the government is actively litigating to prevent judicial review of his detention.

This latter point bothers me more than does the sheer length of time the detention has persisted. Back in October, I was counting on litigation pressures to ensure that the detention would not go on too long. As I wrote back then,

The administration can stave off for some time the detainee’s ability to meet with counsel, but the grace period will not be long. The longer this drags out, the more concerned the courts will grow and the less military detention will operate as a temporary stopgap convenience. The longer it goes on, rather, the more it will operate as a headache from which transfer is the only solution. There may be someone in the Trump administration who wants to use this case to make a point that detention is legitimate and to signal toughness. But that does not appear to be what’s driving the current detention. In any event, litigation pressure will concentrate minds.

But the litigation pressures have not adequately concentrated minds—at least not yet. The government has withheld the name of the detainee, arguing that the Geneva Conventions preclude its release. By doing so, it has prevented lawyers from contacting members of his family who might wish to file a habeas case on his behalf. It has given no assurances that he has been alerted of his right to file a habeas petition. It has not facilitated either his access to counsel or access to him by the ACLU lawyers who wish to represent him. And in a legal argument that practically defines chutzpah, the government has then turned around and argued that because of the ACLU’s lack of a relationship with him, the group is not a proper next friend for habeas purposes. Some of these positions are, in isolation from one another, respectable. But they are, in combination with one another, indefensible. They amount, as Bobby Chesney recently put it, to the “dangerous principle” that the government can “can prevent courts from addressing [legal] questions via habeas review simply by declining indefinitely to identify a citizen whom it has detained (or at least for as long as it wishes to explore other potential long-term disposition options for a citizen who is, all the while, held as an enemy combatant).”

To be clear, I have no particular reason to harbor legal anxieties about the detention itself. From the spare facts that are public about John Doe, I suspect that his detention would survive review—though the government’s tenacious efforts to prevent that review do make me wonder. Even assuming the detention is lawful, however, one of the reasons I am comfortable with military detention of American nationals caught in theater fighting for the other side is the availability of habeas review of their detentions. Take that away, or denude it of content by allowing secrecy to limit habeas jurisdiction, and my comfort evaporates.

The government, it seems to me, has two respectable choices here: It can transfer or free the detainee, or it can give him access to counsel and allow him to file a case challenging his detention. What it cannot do—and what the courts should not tolerate—is refuse to honor any of the systems designed to guarantee judicial oversight of an American’s detention and to obfuscate the circumstances of that detention to enable itself in that refusal.

That course is alarming—even if saying so leaves a distinct aftertaste of crow in my mouth.