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For months, Ben and I have teasingly harkened back to the halcyon days when we used to disagree more often—when the relatively modest real estate between our respective views on U.S. national security law and policy defined a significant amount of the space in which much of the meaningful public debate and discourse took place. For obvious reasons, those (often heated) debates have largely receded into the background over the past nine months, thanks to the widespread unity about just how problematic, wrongheaded, and affirmatively dangerous that which passes these days for U.S. national security “policy” has become.
But Ben’s response to my Just Security post from last Wednesday (and the habeas petition filed by the ACLU on Thursday) in the case of the John Doe U.S. citizen being held in Iraq as an “enemy combatant” sure reminds me of the good old days. In a nutshell, Ben isn’t worried about the fact that a U.S. citizen has been held in incommunicado military detention for almost a month because (1) the problem of military detention of Americans “turned out to be self-limiting, because holding people in military detention created more problems than it solved legally for the government”; (2) the U.S. citizens who were subjected to military detention ended up being so held for periods that were “relatively brief”; and (3) the Supreme Court’s 2004 decision in the Hamdi case both sustained the legality of the government’s detention authority even over citizens and required enough process to ensure that “military detention of citizens was not going to be a zone of unaccountable executive discretion.” Taking all of these together, Ben concludes that: “I have no particular discomfort with the short-term military detention of citizens, particularly in combat theaters, but I’m glad such detainees have habeas rights to put pressure on the government to keep detention short and to look for more attractive long-term dispositions.”
I have three problems with this analysis:
First, and most importantly, it buries the lede. The judicial review that Ben is so confident will either sustain John Doe’s detention or reject the government’s authority to detain him depends entirely upon the existence of a plaintiff who can serve as Doe’s “next friend,” since Doe himself is hardly in a position to communicate with lawyers, let alone file a habeas petition on his own behalf. This issue was quickly resolved in Hamdi (his father was aware of his detention and was eventually allowed to proceed on his behalf), and it wasn’t an issue at all in Padilla (who was initially detained on a material witness warrant, and so had lawyers already representing him at the time of his transfer to the military). But it is a huge issue here. As last Friday’s New York Times article all-but suggests, the government is not identifying the detainee or allowing him access to counsel at least largely to forestall, for as long as possible, the habeas litigation in which Ben has so much faith. Ben notes this concern, and writes that “I’d be far more uncomfortable if the ACLU were unable to exert the pressure I suspect this litigation will, in fact, generate—and to the extent that the secrecy associated with the detainee’s identity encumbers that representation, I will feel differently about it.” Unlike Ben, I very much worry that this is the precise problem that this case raises—and I therefore do feel differently about it.
Second, Ben overstates what the Supreme Court has actually settled, writing that, “while the ACLU can argue till the cows come home that such detentions are illegal, the Supreme Court has said otherwise, albeit with certain caveats.” Actually, the Supreme Court has only upheld the detention of citizens on the unique facts of Hamdi, with Justice O’Connor going out of her way to stress the narrowness of its ruling. But don’t take my word for it; in 2014, Justice Breyer emphasized just how little the Court has settled when it comes to the scope of the AUMF (and that case involved a noncitizen at Guantánamo). Added to the rather significant open question Ben flags about whether the September 2001 statute encompasses ISIS (and the possibility that the Non-Detention Act makes that question even harder), I don’t know how he can be quite so sanguine about the merits here.
Third, and in any event, Ben’s suggestion that these cases are self-limiting rather misses the real lesson of the other major U.S. citizen military detention case—Padilla—in which the government was successfully able to detain a U.S. citizen without charges for over 1300 days without ever having the Supreme Court resolve the lawfulness of his detention one way or the other. What good is the process in which Ben has so much faith if the government can fight a case all the way to the Supreme Court, and only then opt for criminal prosecution at the last moment before it fears it might lose? Ben’s answer may well be that Padilla was ultimately transferred to criminal custody, but that hardly remedies what may well have been—and, indeed, what the Supreme Court was almost certainly prepared to hold was—unlawful military detention.
Don’t get me wrong: I’m not in any way “panicked” about this case, or the specter that it might somehow portend mass military detentions of U.S. citizens at home and abroad. Far from it. But I also don’t think it’s appropriate to blithely dismiss the significance of a case in which the government refuses to identify an American citizen it’s holding in military detention for the apparent purpose of frustrating the very judicial review that Ben commends. As Padilla demonstrates, even when we know who the detainee is, the government has numerous means of avoiding potentially adverse rulings, while U.S. citizens held in incommunicado detention languish in the interim. Why not be worried about the latest apparent variation on this theme regardless of how many cases it implicates? As the Supreme Court put it over 130 years ago:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.
Thus, the more time passes in John Doe’s case without (1) knowing who he is; (2) providing him with access to counsel; or (3) allowing the courts to even review the legality of his detention, the more alarmed I am by the government’s conduct—and the more alarmed you (and Ben) should be, too.