Thoughts on S.3707, Part III: What’s New and Different?

By Benjamin Wittes
Sunday, September 5, 2010, 11:45 AM

The Graham habeas bill is not entirely an exercise in codification and entrenchment of existing practices. It does, in important respects, modify and tailor the rules as well. The bill's innovations occur both at a high altitude and at a more granular level. At the highest level of altitude, its key contribution is a clear statement that the United States remains in a military conflict with Al Qaeda and its associated forces and that this conflict necessarily implies an authorization to detain members of the enemy. This clear authorization in statute for detention operations is important for two reasons. The first is that the AUMF, on which all current detention operations depend, is growing old, and as it ages, its continuing applicability to current U.S. military operations gradually becomes more ambiguous. In a recent speech at Brookings (transcript here, audio here), Assistant Attorney General David Kris candidly acknowledged this problem, noting that it would eventually pose hazards for detention operations. Having Congress reaffirm the legal premises—both that the United States is at war and that the legislature authorizes detention as a instrumentality of that warfare—should help prevent the unintended unraveling of detention authority as time wears on. Second, the language unambiguously answers the suggestion occasionally made by detention critics that Congress has never spoken sufficiently clearly on detention so as to authorize it in any circumstances beyond the immediate battlefield or even short of an international armed conflict involving the regular armed forces of another state. The AUMF, after all, does not specifically refer to detention, and there remains some debate as to precisely what, if anything, the laws of war have to say about detention outside the context of armed conflicts between states. Such arguments have had no traction in the habeas litigation thus far; all of the judges acknowledge that the government has some detention authority under the AUMF, though they disagree about how much. But it is also clear that detention's legitimacy has always suffered from Congress's unwillingness to put itself squarely behind the propriety of the project. And it is unhealthy in any event to rely on the AUMF's very broad and vague language to establish the baseline legitimacy of such a central feature of our military operations. This bill would address these problems. For the first time, detention would take place under clear and explicit congressional sanction. The bill’s other novel contributions are more specific in nature. For example, it offers a more precise and useful definition of “unlawful enemy belligerent” than either the administration has proposed or the courts have adopted to date. This will help bring order to one of the most contested aspects of the habeas cases: the substantive scope of the government’s detention authority. Not having a stable working definition of the class of people detainable under law is corrosive of the rule of law, as the legal standard for detention comes to depend on the identity of the judge to whom a habeas petition is assigned. Appellate review ultimately may restore uniformity, of course, but in the interim years may go by, with neither detainees nor the government entirely sure which standard governs. The uncertainty associated with gradual common-law decision-making may be tolerable in a conventional setting involving, say, the development of tort or contract principles, but military detention is a different matter. The bill would make a significant contribution toward resolving this problem (although as I’ll describe in my next post, I think it could usefully go further than it does in specifying the particular circumstances that should and should not give rise to detention). Currently, the executive branch claims the authority under the AUMF to detain those who are either “part of” or “substantially supporting” Al Qaeda and associated forces. And the various judges have adopted varying definitions of the detainable class. All acknowledge that the executive can detain people who are “part of” the enemy, but some deny that support gives rise to detention as well, some accept substantial support, and some would permit detention based on support even if it were not substantial. They also provide very different understandings of what being “part of” the enemy means—understandings which range in practice from affiliation and significant association in a general sense to a requirement that one takes and executes orders from the command hierarchy of the organization’s military wing. The new proposal would resolve the first dispute, though not the second. Roughly codifying the approach of the D.C. Circuit Court of Appeals, it permits detention of someone who has “engaged in hostilities against the United States or its coalition partners,” someone who “has purposefully and materially supported hostilities against the United States or its coalition partners,” or someone who “was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of” the enemy. This definition is somewhat different from that proposed by the administration but broadly similar in its sweep, adding some degree of clarity with respect to certain people accused chiefly of supporting the enemy. While I think the definition could be more precise still, merely having a clearer and stabler starting place for the discussion of whom the government is authorized to detain would mark substantial progress. Third, the bill offers a flexible device for accommodating the reality that Al Qaeda and the Taliban are not static but rather have morphed over time, and have been joined in the field by a number of other armed groups that have distinct identities but nonetheless are actually engaged in hostilities against the United States and its coalition partners. This problem is manifest today in relation to hostilities in Afghanistan, where an array of loosely-aligned armed groups aside from Al Qaeda and Mullah Omar’s Taliban—such as the so-called Haqqani Network—are actively engaged in hostilities against the United States, NATO, and the Afghan government. Faced with a detainee in the future alleged to be linked to an enemy group, therefore, a habeas court may have to confront the question of whether the group in question really is for legal purposes part of the enemy against which Congress has authorized the use of force. The balance here is tricky. On the one hand, the question of whom the United States is at war with is a quintessential political question. On the other hand, a rule in which the AUMF applies to anyone the executive branch says it applies to is no rule at all. A person alleged to be “part of” an enemy group presumably gets to challenge both whether he is, in fact, part of the group in question and also whether the group is meaningfully an enemy group at all. This argument was, in fact, put forth by the Uighur detainees in 2008, for example, who argued successfully that the government had not come forward with adequate evidence showing that the East Turkistan Islamic Movement (“ETIM”) was an “associated force” of al Qaeda or the Taliban. To balance these competing interests, the bill would permit the executive to notify a habeas court of a group which it regarded as enemy “associated forces” and it would require “utmost”—but, critically, not binding—deference from the courts in the face of such notification. This mechanism raises important questions and could certainly stand some scrutiny and debate, including consideration of how it would have impacted the outcome in the Uighur decision itself. At a minimum, however, the concept that the law must accommodate proactively the changing nature of the enemy is important and useful, especially insofar as it obliges not just the government and the courts but also the public at large to think seriously about the nature and scope of the enemy in this confusing and complicated context. Fourth, one of the most important proposals in the bill is its articulation of a series of presumptions related to the vitiation of membership in enemy groups—all of which respond to live debates within the habeas courts. The judges have, for example, treated very differently people who took some degree of training from Al Qaeda but who then claim to have left without ever joining. Some judges have suggested that taking training is all but dispositive evidence of belligerency, while some have treated it as woefully insufficient evidence in and of itself. The bill takes a middle path, suggesting that a showing of training creates “a rebuttable presumption” that the detainee is lawfully detained—that is, it shifts the burden from the government to prove belligerency to the detainee to prove that he never really joined up. Similarly, the bill creates a rebuttable presumption that having once joined an enemy group, the detainee remained a member until the date of capture. This is a critical question in at least one case, where a detainee acknowledges having joined Al Qaeda years before September 2001 but claims to have left some time later—and it plays an important role in other cases as well. The question of whether such detainees should bear the burden of proving that they quit, or whether instead the government should bear the burden of proving not merely that they joined up but that they remained members is one of the little-discussed but hugely important unresolved questions in the habeas litigations. The bill would place on the detainee the burden of proving that he ceased to be a member in that circumstance. As I will explain in my next post, it actually requires too much of the detainee in this regard, but the basic concept seems exactly right: The government has the initial burden of proving that a detainee joined, but if it does so successfully, the burden should shift to the detainee to prove that he was no longer a member by the time he got caught. On a related point, the bill would also clarify that a detainee cannot vitiate his relationship with the enemy after his capture. In one important habeas case, a judge ruled that a detainee who admitted Al Qaeda affiliation had, by becoming an informer at Guantánamo, effectively vitiated his relationship with the group—thereby rendering his detention unlawful. The bill would make clear that the relevant moment of membership for habeas purposes is the point of capture and that one cannot remove the legal grounds for detention by becoming cooperative once in custody—a position broadly consistent with language in several of the most-recent D.C. Circuti Court of Appeals decisions. Finally, the bill’s other significant breakthrough concerns the treatment of allegedly involuntary statements by habeas courts. To be clear, no one is suggesting that the fruits of abusive interrogation should be admitted as evidence in habeas proceedings. Indeed, there is widespread agreement that statements derived from torture or cruel, inhuman, or degrading treatment should not be considered, and the bill would codify this standard. The hard question is how to treat statements made by a detainee in response to lawful, non-abusive questioning that might nonetheless be viewed as inherently coercive simply by virtue of the fact that it involves interrogation of a person held in long-term military custody that might follow abusive treatment in other settings. The courts have diverged widely on how to handle these statements, as well as statements made by detainees while appearing in hearings such as the Combatant Status Review Tribunals and the Administrative Review Boards. The judges generally agree at the highest level of generality that the relevant standard is “voluntariness,” but they nonetheless have taken very different approaches to figuring out what voluntariness means in practice in these unconventional settings—differences that have had material impacts on case outcomes. Some judges, for example, have indicated that compliance with the Army Field Manual on interrogation provides a safe harbor for executive conduct. Some have excluded statements given before military status review panels while others have admitted such statements under similar conditions. The bill would codify the key points of apparent consensus: Statements extracted by means of torture or cruel, inhuman, or degrading treatment are not admissible. As for other statements, the bill woul require, as a condition of admissibility, that a habeas court find either that the statement was made “incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement and the interests of justice would best be served by admission of the statement into evidence” (these situations are extremely rare) or that “the statement was voluntarily given.” It then clarifies that voluntariness is measured according to the “totality of the circumstances” and lays out some circumstances for the courts to consider. And then it creates two important presumptions, both of them rebuttable. The first is that statements against interests given by detainees before formal review panels or in interrogations compliant with the Army Field Manual are admissible. The second is that such statements also are reliable. The idea is to force the government to establish the voluntariness of statements while creating presumptive safe harbors for certain government conduct that generally does not give rise to abuse concerns. In such situations, the detainee should have to show that, despite those safeguards, the circumstances were too coercive to justify reliance on the resulting statements. Such an arrangement would add great clarify to one of the murkiest areas of the habeas cases—an area whose murkiness affects a large number of cases. In the next post, I will outline what are, in my judgment, the major problems with the bill.