Continuing the Conversation on the Scope of Detention Authority

Robert Chesney
Tuesday, September 21, 2010, 3:40 AM
In response to this post Ben and I put up earlier regarding the Graham bill’s detention provision, Steve Vladeck has written a reply and given me permission to post it below.  My comments follow after:
In response to my concerns about how the Graham bill would authorize the stateside detention of U.S.

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In response to this post Ben and I put up earlier regarding the Graham bill’s detention provision, Steve Vladeck has written a reply and given me permission to post it below.  My comments follow after:
In response to my concerns about how the Graham bill would authorize the stateside detention of U.S. citizens and would rely on the expansive “material support” umbrella as the underlying basis for detention, Ben and Bobby write that “the bill does not grant the administration any detention authority that the Obama administration has forsworn or ever argued that it doesn’t have.” That may be so, but it’s hardly the (or at least my) point. I, for one, would be deeply troubled by any administration (or legislature) that based the government’s detention authority on a concept so sweeping that it may even extend (in this Administration’s view, at least) to lawyers who write amicus briefs on behalf of designated terrorist organizations.
But leaving the specific scope of material support aside for the moment, there’s a broader point to make here: As the targeted killing debate illustrates, we’re on the verge of a critical legal and policy conversation about whether, in the ongoing conflict with al Qaeda and its affiliates, the government really may use military force (whether to capture or kill) anywhere, and at any time, without any reference whatsoever to the geographic or substantive constraints arguably imposed by international law.  The Graham bill would all-but end that debate before it started, since it would provide unmistakable statutory support for that very view while endorsing a substantive standard that would sweep well past traditional views of belligerency. Ben and Bobby may think that, as a matter of policy, this is the right way forward. That’s their prerogative, and I greatly respect them for their views. It should hardly be surprising that, for reasons I’ve tried to articulate throughout this exchange, I disagree.  But whichever side of this debate you, the reader, find convincing, the real point here is how significant the Graham bill would be in this regard.  Put simply, as much as I am troubled by the defenses of the bill that have been offered on this blog and elsewhere (and that I won’t rehash here), I’m even more disturbed by the apparently related argument that this is not a big deal. Whether you like the Graham bill or not, it would represent a decisive shift from what Congress had previously authorized.
Three comments in response to this thoughtful reply.
First, our main point was not that the administration has long argued that the AUMF already contains these authorities, though we certainly did point that out.  Rather, our main point was that many judges have agreed with that interpretation. Some judges have disagreed, to be sure, and it is far from clear what the Supreme Court ultimately would say on either point.  But the fact remains that, for the moment, the caselaw tilts in the government’s favor on both points.  From that perspective, I just don’t think the bill can be described as a “decisive shift from what Congress has previously authorized.”
Second, Steve contends that the Graham bill (and presumably also the AUMF, as it has been construed by at least some judges) would put the United States in violation of international law.  If I’m reading him correctly, he is arguing that international law affirmatively forbids military detention of persons who are captured outside the political borders of a state in which conventional combat operations are occurring, such as Afghanistan, and also persons who are not “part of” an enemy organization but instead merely provided support to such a group.  More specifically, I take him to be arguing that the laws of war preclude detention in those circumstances.  There certainly are many who advocate both those positions, and perhaps the Supreme Court ultimately will adopt one or both of them.  Again, however, the judges in the meantime have divided on both points, with the most recent decisions in the D.C. Circuit and the Fourth Circuit cutting in the government’s favor  (Steve suggests that the en banc D.C. Circuit’s dicta-fication of the panel decision in al-Bihani took down not only the panel’s statement about the relevance of international law but also its statements on support, but I’m not persuaded that this is so). 
Third and last is the question of the policy wisdom of asserting detention authority in these circumstances, particularly as it relates to material support as a detention predicate.  Under that heading, I don’t think we are as far apart on close inspection as the exchange up to this point seems to suggest. Steve has emphasized a scenario in which a lawyer contributes an amicus brief on behalf of an AUMF-covered group in litigation.  I have no problem agreeing that the U.S. does not need the power to detain such a person, and frankly can’t imagine the government wanting to do so.  What I can imagine, however, is the government in at least some circumstances wanting to detain someone who cannot fairly be described as “part” of al Qaeda but who nonetheless knowingly provides al Qaeda with financial support, or explosives training, or recruitment of foot soldiers, or the like.  It’s not clear to me that Steve’s policy objections extend to such scenarios; I suspect not.  In any event, it seems to me that it is very useful to have a dialogue about the kinds of support that might warrant detention from a policy perspective, separate and apart from the debate over what international law may have to say on the subject.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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