Why I’m Not Panicked About That American Citizen Being Held in Military Custody

By Benjamin Wittes
Monday, October 9, 2017, 5:02 PM

The detention by U.S. forces of a still-unnamed ISIS fighter who turned himself over to a U.S.-allied militia in Syria a few weeks ago has sparked cries of alarm that hark back to the early days of the post-Sept. 11 environment.

The ACLU has filed a habeas petition on the detainee’s behalf and called the matter an “Indefinite military detention without due process [that] violates the most basic principles of our Constitution.”

Commentators such as Steve Vladeck have also raised their voices about the detention, including over the fact that others have not done so. “One would think that the plight of an American citizen, the first to be subjected to military detention as an enemy combatant by his own government in almost a decade, would be a topic of interest to members of Congress,” writes Vladeck. Perhaps “amidst an indescribably busy (and tragic) news cycle, the incommunicado detention of an unidentified American citizen half a world away just doesn’t make the cut as a topic of interest. If that’s the case, that’s a pretty alarming reflection on the state of the world today—and on how far we’ve come with respect to a topic that was (rightly) a huge source of controversy during the Bush administration.”

Color me less alarmed.

I wrote a lot about those cases throughout the Bush administration. And I don’t underestimate the importance of the current case. Yet here we are, weeks into the man’s detention, and I’m only now getting around to writing about it. Moreover, I’m decidedly complacent about it. To some extent, that’s because Vladeck is right: Of all the things that alarm me about the state of the world right now, the probably lawful detention of a single person in a zone of active military operations is low on the list. I’m much more worried about other things. But there are other reasons for my complacency as well, reasons rooted less in competing priorities for my attention than in the development of detention law and policy over the past decade.

In the early days of the War on Terrorism, the fate of U.S. citizens held in detention by the military without charge and without access to counsel was about the biggest civil-liberties deal in town. I don’t know how many editorials I wrote about the Hamdi and Padilla cases for the Washington Post, but it was a great many. The concern was about an administration that could end-run the strictures of the criminal justice system; hold its citizens in communicado for long periods, perhaps even indefinitely; and restrain judicial review of its actions in the process. It was pretty scary, and those of us who wanted to limit the practice were not wrong to be concerned.

But over the years, a number of developments have mitigated my concern: Most importantly, the problem turned out to be self-limiting, because holding people in military detention created more problems than it solved legally for the government. Yes, the standard for military detention was lower than the standard for criminal prosecution and the standards of evidence much more forgiving. And yes, this gave rise to the theoretically attractive option of circumventing the criminal justice system’s rigor while keeping someone locked up. But in practice, the attraction just wasn’t there. The criminal system involved a known and predictable set of processes that produced stable results, while military detention produced years of litigation and uncertainty. The result was that military detention for citizens lost its sheen even relatively early in the Bush administration—and the practice was never seriously considered in the Obama administration. Nobody took it off the table conceptually because it was possible to imagine a case where it would be necessary. But where it wasn’t necessary, it wasn’t used. And it turned out not to be necessary very often at all.

A second, related factor was that “indefinite” became a much less scary adjective when describing detention as it became clear that it was, in practice anyway, a synonym for “comparatively brief.” Yaser Hamdi, unlike the other American Taliban detained around the same time—John Walker Lindh—was back with his family and free within three years. Lindh, by contrast, got a long prison sentence. Jose Padilla was ultimately transferred to civilian custody, where his spell in military detention grossly limited the charges available to file against him. It was hard to be too worried about the civil-liberties implications of a practice that generally ended up working out as a windfall to people who would otherwise spend much more time locked up. And the attractiveness of a military detention option that offered less time in prison was, from the government’s point of view, limited for obvious reasons.

Finally, the Supreme Court’s handling of the Hamdi case reduced the fear factor as well. While the court (rightly, in my view) validated the authority of the government to detain a U.S. citizen under the 2001 Authorization for Use of Military Force, it also made clear—at least functionally—that the military couldn’t prevent him from meeting with counsel and that there must be some kind of process to evaluate the integrity of an enemy combatant designation. So military detention of citizens was not going to be a zone of unaccountable executive discretion.

With all of this as a windup, let’s take a moment to review the rather sparse known facts about the new detainee, his capture and his detention. As the New York Times describes it:

The Trump administration has said almost nothing about the detainee beyond acknowledging that he exists and was recently visited by the International Committee of the Red Cross. Spokesmen at the White House, the Pentagon and the Justice Department have repeatedly demurred when asked for even basic facts about what is happening.

When asked about the case at a security conference at Georgetown University on Sept. 14, two days after the suspect surrendered, John J. Mulligan, the deputy director of the National Counterterrorism Center, said he presumed that the individual would probably be charged with material support to terrorism.

The senior administration official partly opened a window onto the matter. The prisoner, the official said, was born on American soil, making him a citizen, but his parents were visiting foreigners and he grew up in the Middle East. The near total lack of contact with the United States slowed efforts to verify his identity, the official said.

The prisoner was interrogated first for intelligence purposes — such as to determine whether he knew of any imminent terrorist attacks — without being read the Miranda warning that he had a right to remain silent and have a defense lawyer present. The government then started a new interrogation for law-enforcement purposes, but after the captive was warned of his Miranda rights, he refused to say any more and remains in military custody in Iraq, the official said.

Investigators have also identified a personnel file in a cache of seized Islamic State documents that appears to be about the captive, the official said. But prosecutors could have difficulty getting that record, which was gathered under battlefield conditions, admitted as evidence against him under more rigorous courtroom standards.

As a result, while the Pentagon wants the Justice Department to take the prisoner off its hands, law enforcement officials have been reluctant to take custody of him unless and until more evidence is found to make it more likely that a prosecution would succeed, the official said.

Note a few things about this account. The detainee is not being held in military custody because the Trump administration is keen to thump its chest about toughness in counterterrorism. The military, the Times reported, “wants the Justice Department to take the prisoner off its hands.” Moreover, the account here of the government’s behavior is broadly consistent with what came to be called the Warsame protocol, the system developed during the Obama years in which a detainee is interrogated for intelligence purposes and then reinterrogated by a “clean team” with an eye toward transferring him for a law enforcement disposition.

As I noted above, it was always a theoretical possibility that a situation might arise in which that transfer was hard—that a detainee under these circumstances might not play ball and talk to law enforcement, and that a criminal case would thus not be an obvious disposition. It appears that the current situation is an example not of some ideological or policy departure from the previous caution about citizen detentions but of something more prosaic: a situation in which all the pieces do not fall into place neatly enough to make a citizen detention avoidable in the short term.

Assuming that’s correct—that the detainee is not in military custody because the military wants to revitalize citizen detention but because there’s no immediately available law enforcement alternative—there’s a lot of reason not to overreact to the current situation. For one thing, while the American Civil Liberties Union can argue till the cows come home that such detentions are illegal, the Supreme Court has said otherwise, albeit with certain caveats. Hamdi creates a degree of legal space for this sort of action. And as long as the government is acting within the contours of that space, people should be careful about crying illegality.

More important, the same logic that has made these sorts of detentions rare and transient will create pressure toward a law enforcement disposition in this case. Reflecting this logic, Bobby Chesney wrote recently: “Prediction: Within a week or so, John Doe will be en route to the U.S. to face civilian prosecution.” He wrote this before the New York Times story was published, which suggests difficulties in that effort. But the Times story also makes clear that a law enforcement disposition is everyone’s preferred outcome, including the military’s. That suggests that the current detention, like those before it, is a transient state of affairs, and that if a law enforcement disposition proves impossible for some reason the result will be a transfer to some other country’s custody or to supervised freedom, not a sustained U.S. military detention.

The litigation itself will tend to reinforce this logic. 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.

This is particularly true because this case could plausibly make justiciable the administration’s legal theory of the war against the Islamic State. That theory, that the original AUMF covers ISIS as a successor group to al-Qaeda in Iraq, is not laughable. But it’s not obviously right either. And the litigation risk associated with asserting in federal court that the AUMF authorizes the detention of an ISIS fighter is not trivial. There are only two ways around this problem. One is for the administration to go to Congress to get a new AUMF. The other is to stop holding an ISIS detainee with access to U.S. courts under the existing AUMF, either by transferring him to law enforcement or by transferring him to a foreign government. The former of these options is much harder to effectuate than the latter, and the former requires a complex interaction with Congress—a forum in which the Trump administration has yet to show it can get anything done. The latter does not.

There’s an ironic tension there, of course, in that I’m relying on the ACLU’s panic to put pressure on the administration as a means of alleviating alarm on my own part. It is certainly the case that I’d be far more uncomfortable if the ACLU were unable to exert the pressure I suspect this litigation will generate—and to the extent the secrecy associated with the detainee’s identity encumbers that representation, I will feel differently about it. A cynic might say that this reflects a recognition that I’m not actually comfortable with current law and policy—merely confident that because of the actions of people franker about their discomfort than I am, it won’t persist for long. Perhaps. I prefer to think about it slightly differently. Which is to say that I have no particular discomfort with short-term military detention of citizens, particularly in combat theaters, but I’m glad that such detainees have habeas rights to put pressure on the government to keep detention short and to look for more attractive long-term dispositions.

Either way, put it all together and there’s a lot of reason to expect the current situation to resolve itself—and there’s a lot of reason to anticipate the direction of its resolution. I don’t know what the time frame of that resolution looks like, and the case for alarm certainly strengthens the longer the current situation persists. That said, the pressures against the current situation mount with every passing day too. Eventually, those pressures will be overwhelming.