A Response from Daphne Eviatar

Benjamin Wittes
Tuesday, September 7, 2010, 9:41 PM
Daphne Eviatar responds to my comments and challenge of last week. As promised, I am posting her response unedited:

Last week, Brookings Institution fellow Benjamin Wittes continued an exchange we’ve been having on Lindsey Graham’s proposed legislation which seeks to expand (or clarify, as its supporters would argue) U.S. detention authority in the “war on terror.”  I respond below to each of his five points, and his challenge.

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Daphne Eviatar responds to my comments and challenge of last week. As promised, I am posting her response unedited:

Last week, Brookings Institution fellow Benjamin Wittes continued an exchange we’ve been having on Lindsey Graham’s proposed legislation which seeks to expand (or clarify, as its supporters would argue) U.S. detention authority in the “war on terror.”  I respond below to each of his five points, and his challenge.

1)      Wittes says that when it comes to the law related to Guantanamo detentions, he “can’t think of a single major area in which the law is well-defined and stable.”

I'm confused by this statement. As 16 former federal judges pointed out in the recent report, Habeas Works, the federal courts have uniformly agreed that the United States' detention power stems from the Authorization for the Use of Military Force (AUMF) against al Qaeda and the Taliban. They therefore have simply had to decide whether the detainee at issue in any particular case is sufficiently connected to al Qaeda or the Taliban to be lawfully detainable. Given that we're at "war" with loosely-defined terrorist organizations rather than nation-states with armies that wear uniforms, such a determination is necessarily a complicated one that requires careful weighing of a broad range of relevant facts, in context; that kind of factual inquiry is the appropriate role of the judiciary. Attempts to short-circuit that inquiry through legislation will only confuse, rather than clarify, that necessary process.

Moreover, in the process of making those inquiries the federal courts have agreed on effective rules of evidence and procedure that carefully balance the government’s interest in protecting national security against the detainee’s liberty interest. New legislation in this area would needlessly confuse and complicate judges’ ability to continue doing their jobs.

2)      Wittes says I’m “dead wrong” that legislation would expand detention authority, and suggests that human rights advocates merely want policy made in whichever forum will give detainees the best deal.  But this debate is not about giving detainees a good deal; it's about making sure that the government is only detaining people who are actually combatants fighting the United States. Unfortunately, Senator Graham’s proposed legislation, which Wittes is promoting, by creating presumptions of guilt that as a practical matter may be very difficult for a suspect to overcome, could lead to the detention of a much broader range of foreigners with vague associations to terrorist organizations or their members. That is precisely what the Bush administration did, and why judges have had to order that so many of the detainees be freed.

The presumptions in Graham's proposed legislation threaten to do the same, by acting as a thumb on the government's side of the scale as the judge weighs the evidence; they create a new burden on the detainee to prove his innocence, in an environment where the detainee already has far less access to evidence and witnesses than does the government. I think the D.C. Circuit in Al-Bihani was wrong to suggest that someone providing "material support" for terrorists is detainable under the AUMF, as that would include a broad swath of civilians who are not belligerents at all. But that part of the court's holding was not necessary to the decision and is therefore non-binding dicta. The concern about new legislation is that the final product would end up sweeping far too many people into the category of those indefinitely detainable, pandering to fear rather than reflecting sound policy consistent with domestic and international law as well as American values of fairness.

3)      Wittes is correct that his proposed model detention law could be read to expand detention authority in some ways and to narrow it in others. In particular, his proposed requirement that the government prove prospective danger of a detainee could be read as placing an extra burden on the government. But Wittes also bluntly acknowledges in his proposal that "[n]othing compels the president to invoke this detention regime" -- the president "would remain free to take his chances under current law..."  The result is that, notwithstanding Wittes's claim here, his proposal would dramatically expand the President's detention authority, specifically to include suspects who the government believes pose some future danger.

In introducing their model detention proposal, Wittes and his co-author Colleen Peppard specifically noted that it would allow the government to detain indefinitely "[p]eople against whom evidence may not come close to proving criminal culpability [yet] may still pose an unacceptable danger as a result of frankly-acknowledged allegiance to enemy organizations, evidence that would be inadmissible in criminal proceedings, or evidence that cumulatively falls short of proof beyond a reasonable doubt of criminal conduct." Although Wittes and Peppard were responding there to the argument that suspected terrorists ought to be prosecuted criminally rather than detained under the laws of war, the point is the same: they would add a whole new category of people who would be made detainable based purely on speculation about what they might do in the future. Such speculation would be based on things such as their allegiance to an organization rather than any wrongful acts that they have actually done or attempted. Moreover, the evidence of such “allegiance” would often be based on hearsay or secret classified evidence, neither of which is subject to cross-examination.

The First Amendment problems of indefinite detention based on allegiance to an organization are obvious; the parallel to the infamous internment of the Japanese during World War II, a sad and embarrassing chapter in this country's history, is alarming.

4)      Wittes argues that the D.C. Circuit has “strongly intimated that a brief stay at a terrorist-linked guest house” would justify a suspect’s detention, whereas the Graham legislation would not. But as I explained earlier, the D.C. Circuit's suggestion in Al-Bihani v. Obama that “support” for terrorist groups alone is grounds for indefinite detention was mere dicta, in a case where the court believed the detainee was clearly a member of enemy forces. Similarly, the court's intimation that staying at a terrorist-linked guesthouse would justify detention has no binding authority; Al-Bihani admitted that he was part of an al-Qaeda affiliated group that fought alongside the Taliban. Indeed, the panel deciding the case specifically noted that it did not rely on the contested claim that Al-Bihani trained at Al Qaeda camps and stayed at Al Qaeda guesthouses. And district court judges hearing other cases have looked carefully at such claims by the government and determined their relevance in context; courts have frequently found that a single visit to a particular guesthouse that had also housed terrorists was not sufficient proof that the detainee was himself a terrorist.

5)      Finally, Wittes objects to my suggestion that he and Senator Graham are more accepting of the use of coerced statements than they should be, or than federal courts have been. While he’s correct that Graham’s proposed legislation requires a finding of voluntariness, the presumptions in favor of the government included in the legislation are significant. They place an extra burden on the detainee to prove, often many years later, that his statement was not voluntary. Of course, there is no way to prove such a thing, other than to look at all of the facts and circumstances surrounding those statements. That is, once again, the appropriate role of a judge. The legislation’s presumption of voluntariness in the face of such "lawful" coercive techniques as sleep-deprivation, isolation and "fear-up" -- the use of thinly-veiled threats designed to terrify the detainee into cooperating -- is once again taking the role of exercising judgment away from judges and putting a heavy weight on the government's side of the scale.

In closing, Wittes “bet[s] that when the D.C. Circuit addresses this issue, it will adopt a standard more solicitous of government efforts to use statements that detainees allege to be the products of coercion than are the standards laid out in the Graham bill.”  If he’s wrong, Wittes says he’ll “publicly eat crow on this blog” and take me out to lunch; I’ll be paying the bill if he’s right.

I don’t like to bet on what any particular court will do in any particular case. But it’s worth noting that when it comes to the use of coerced statements, the courts have generally refused to admit statements elicited by torture and looked at the "totality of circumstances" when it comes to deciding whether a statement was voluntary. They've also required the government to show, using a test borrowed from criminal law, that there was a “clean break” between coercion and the statements sought to be admitted. I can't predict what the D.C. Circuit will do if it rules on this issue, but I’d expect that eventually, the courts will allows judges to do what they do best: exercise their judgment based on the facts before them. By giving the government a leg up in these situations with favorable presumptions that may be virtually impossible for a detainee to rebut, Sen. Graham's legislation – and likely any new legislation that would make it out of Congress in this fear-charged and hyper-partisan environment – would remove important discretion from judges and hand it to the executive. I certainly hope the D.C. Circuit will not make that choice.

In any event, I look forward to lunching with Mr. Wittes -- although I expect we'll end up arguing over who should pick up the tab.

I too look forward to our lunch and thank Ms. Eviatar in the meantime for the illuminating exchange.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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