Resolving Ambiguities? Yes. Dramatically Expanding Existing Detention Authority? No.

Robert Chesney
Monday, September 20, 2010, 1:43 PM
[A jointly-written post by Bobby Chesney and Benjamin Wittes] Does the substantive scope of detention authority conferred by the Graham bill (S. 3037) “dramatically expand existing law,” as Steve Vladeck alleges here?

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[A jointly-written post by Bobby Chesney and Benjamin Wittes]
Does the substantive scope of detention authority conferred by the Graham bill (S. 3037) “dramatically expand existing law,” as Steve Vladeck alleges here? No, it does not.  It adds nothing to the range of circumstances in which the government has long claimed detention authority under the AUMF.   What it does do is resolve persistent judicial disagreement as to whether the AUMF is properly construed to cover these circumstances. Specifically, in the two particulars that concern Steve, the bill does not grant the administration any detention authority that the Obama administration has forsworn or ever argued that it doesn't have. 

Steve argues that the Graham bill goes beyond the status quo in two respects: first by extending detention authority to U.S. citizens captured in the United States, and second by permitting detention of anyone based on their provision of material support. The implication is that courts have rejected attempts to construe the AUMF to cover these circumstances, and that the Graham bill seeks to overturn those results.  But as at least some of the subsequent text in his post concedes, the fact of the matter is that courts have not conclusively rejected either claim of authority by the government (and yes, the government has long claimed both authorities under the AUMF).  The most that can fairly be said is that the judges and justices disagree on both questions, and that the Graham bill comes down on the side of those judges who thought that the AUMF already conveyed this authority. 
Consider first the issue of detaining citizens in the U.S.  A number of judges and justices addressed this precise issue at various times in the Jose Padilla litigation, and many district and circuit judges did the same in the Ali Salah Kahleh Al-Marri litigation (al-Marri was not a citizen, but he was lawfully in the country at the time of his arrest and thus the caselaw he generated is relevant here).  The resulting caselaw is remarkably unsettled.  Steve correctly notes that the combination of dissenting votes at the Supreme Court in 2004’s Hamdi  and Padilla decision casts a significant shadow of doubt over the issue (the opinions in tandem suggest that Stevens, Scalia, Ginsburg, Souter, and Breyer would be hostile to the government’s position in the case of a U.S. citizen captured in the U.S.).  But the fact remains that there is no actual Supreme Court holding to this effect, and Ex parte Quirin remains on the books pointing in the other direction (recall that one of the German saboteurs was a citizen). And the fact further remains that one of the Justices key to that decision has left the court and been replaced by someone who might have to recuse herself from detention cases for a long time to come and whose views are, in any event, unknown. The Al-Marri litigation, meanwhile, culminated in a complex set of Fourth Circuit en banc opinions that ultimately sided with the government’s position that the AUMF does extend to this circumstance. 
Obviously we can have interesting debates about which way all of this should and would cut, but the important point here is that the government for a long time has asserted that the AUMF applies in precisely this circumstance, and many judges have agreed.  The implication that the Graham bill is trying to sneak through some kind of new detention authority by codifying this view is not a fair one; on this issue the bill is neither inventing new detention authority nor codifying the judicial consensus, but rather attempts to express the view of our legislature on a question that has divided the judges.
The same is true with respect to the material support prong of the detention definition.  Again, the government has for years asserted the power to detain those who provide “material support” to AUMF-covered groups, separate and apart from those who are “part of” such groups.  And again, the courts have had many occasions to decide whether this is an appropriate reading of the AUMF—and have failed to come to a consensus.  Bearing that in mind, the fairest description of the Graham bill is that it would resolve statutory ambiguities that have bedeviled the judges in the habeas litigation and that don’t seem likely to be resolved conclusively anytime soon.
None of that is to say that there should not be a sustained debate regarding the policy wisdom of resolving either ambiguity in the direction suggested by the Graham bill (or, for that matter, the constitutionality of doing so).  Of course we should have such a debate.  But demonizing the bill by claiming that it “dramatically expand[s] existing law” doesn’t help concentrate minds to that task.
What sort of considerations might arise once we do move on to a policy debate?  Clarifying that detention authority extends to citizens on one hand naturally draws the concern of, well, all of us citizens, and for very good reason.  Insisting that detention authority extend only to non-citizens, on the other hand, plays into concerns about a two-track system that consistently subjects non-citizens to measures that we will not apply to ourselves. Our own sense is that were the Graham bill, or something like it, to move, this issue should not--one way or another--be a sticking point. Perhaps the simplest way to resolve it would be to limit the detention authorization to U.S. forces operating overseas; that cover Hamdi, but not Padilla or Al-Marri.
As for material support, Steve raises several points that require response, though some are legal rather than policy concerns.   He notes that in civilian criminal cases under 18 USC 2339B, the government has read the phrase “material support” very broadly.  Presumably it has done so because Congress in 1994 defined the phrase very broadly, and then expanded it still further in later years.  But set that point of atmospherics aside.  Steve’s argument appears to be that “material support” reaches conduct that would not constitute “direct participation in hostilities” or any other formulation approximating the idea of being a belligerent, and hence either that it is a waste of time to use this as a detention standard in a statute (an argument that requires a theory as to why the statutory judgment would not control) or else that it is simply undesirable to do so (an argument that requires a policy justification).   Insofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.

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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