Ignore NRO: No Easy Answer on Executive Detention

A recent letter from Attorney General Ben Holder to Senator McConnell (R-KY) (pdf) confronts, head on, Republican allegations that the civilization system is inappropriate for trying putative terrorists. Holder characterizes the debate as follows:

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda

And he goes on to argue that current law in fact prohibits military detention of a U.S. citizen captured in the United States.

In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.

At National Review Online, Shannen Coffin, formerly advocatus diaboli, calls him on it, arguing that the two most important test cases, those of José Padilla and Ali Saleh Kahlah Al-Marri, cut the other way. Specifically, as to Mr. Padilla:

The Second Circuit’s decision was vacated by the U.S. Supreme Court, which held that the Second Circuit had no jurisdiction to decide Padilla’s habeas corpus petition, since he was being held outside of that jurisdiction in a brig in South Carolina. [. . . .]

[Later, t]he Fourth Circuit affirmed the power of the President to detain Jose Padilla — a U.S. citizen detained on U.S. soil — “as a fundamental incident to the conduct of war.”

In a way, they’re both right. But regardless of the site and manner of detention, the law requires that an enemy combatant still have some access to the civilian courts, making Coffin’s ultimate argument a loser. Here’s why.

For civil libertarians, the Second Circuit’s Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) is indeed a pretty great case, for its utter rejection of the power of indefinite detention, at least as applied to U.S. citizens. True, the Supreme Court did eventually vacate the Second Circuit’s opinion and remand the matter to the Fourth Circuit, but they did so by disposing of Padilla’s case on the technical ground that he had sued the wrong defendant in the wrong court: he should’ve sued his immediate warden, in South Carolina, not the executive branch. As they have on so many great questions of our day, the Supreme Court punted, expressly declining to approve of or reject the Second Circuit’s reasoning on the detention issue. Rumsfeld v. Padilla, 524 U.S. 426, 430 (2004). Holder is right to find the Second Circuit’s holding persuasive; but Coffin is right to note that it isn’t exactly binding.

Coffin is also right to imply that Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (see previous coverage) is similarly less than helpful for Holder’s position. But Holder says as much and, more importantly, Al-Marri acknowledges an important nuance that Coffin scrupulously avoids. There, the Fourth Circuit (pdf), taking the executive branch’s allegations against Ali Al-Marri as true, approved of Al-Marri’s continued detention, but held that the executive branch could not continue to detain him without trial indefinitely, and must provide alleged terrorists detained on American soil with some semblance of due process. Coffin fails to raise the question of what happens once the power to detain is upheld, because by avoiding the issue, she hopes to trick the unaware into thinking that it’s an either/or distinction — executive detention & military trial, or civil detention & civil trial. It’s not. Even if we grant Coffin her greatest desire, and remove all suspected terrorists from civilian custody, the logic animating Al-Marri and Boumediene v. Bush will conspire to give detainees their day in court, one way or another. That aspect of the counterterror process is, I assure you, quite out of President Obama’s hands, but Coffin wants to create the illusion that Obama is, in every respect, opting for a less rigorous, more trial-like process, when in fact he’s just abiding by the law.

Further, there’s reason to doubt the more restrictive Al-Marri holding going forwards. There, the evidence against Al-Marri was not before the court. The panel chose to accept the evidence as true, and treat the president’s power to detain in the abstract. Where courts have instead engaged with the facts, and looked at the intelligence the previous administration regarded as determinative of a detainee’s guilt, they’ve been… less than impressed. The NY Times has the brutal, nasty quote from the D.C. Circuit in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008):

Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. [. . .]

Many of [the government’s] assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs.

The court here ultimately rejected the argument that Combatant Status Review Tribunals (military tribunals) could protect a defendant’s rights. And they ordered the guy released. Both reflect poorly on the Al-Marri court’s hearty endorsement of CSRTs, and both prove that, if Coffin wins the battle against Holder, she must still lose the war over military trials. If she wants to prove that Holder’s overstating his case, case law is her friend; but if she wants a legal victory, and not a rhetorical one, it’s her greatest enemy.

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