The decisions in the Detainee Trilogy depend almost entirely upon their procedural contexts; the only serious considerations of the merits were in dissenting (or mixed concurring-and-dissenting) opinions. Thus, the first two segments of this discussion concentrated on procedural aspects: venue and jurisdiction, and the scope of the habeas corpus power. That brings us to the shrivelled third leg: the substantive justification for detention.
It is shrivelled not just in the Court's decisions; it is shrivelled in reality. Ironically, the detainees and their counsel appear to have shown a great deal more respect for classified data and operations than has the government. None of the leaks and slips have come from the defense side of the v.; instead, the revelation of the identity of Hamdi's proposed witness now being held overseas (but not at Gitmo) came from the prosecution's papers. What this implies about the real justification for classifying the data in the first place is left as an exercise for the
cynic student. (Gee, can you tell that I spent a lot of time as an undergraduate in math and science classes?)
However, we don't need to go there. The particular details pertaining to a particular individual matter if, and only if, the theoretical foundation for continued detention has merit. So, then, what is the theoretical foundation? A number of rationales have been proposed, falling into three distinct classes (notice that "three" seems to be a magic number?):
- Continued interrogation. Many of the detainees have been in custody for two years. An experienced investigator/interrogator will tell you that the probability of obtaining further information that one has not already obtained two yearsor even one yearafter beginning interrogation is vanishingly small. Further, given the rapidly changing nature of the terrorist threat, the value of such stale information must also be suspect. Finally, and perhaps most importantly, there's the whole issue of torture lurking in the background. Good interrogators know that torture results only in the spouting forth of statements; it does not necessarily result in the spouting forth of truth. And if one must resort to torture, that implies that one has no independent ability to verify (or refute) what one catches in the bucket.
- Continued danger from individuals in detention. There is a bit more validity to this assertion, but it still depends upon assuming that a terrorist network would be so stupid as to use someone who is almost certainly under continued surveillanceand may well have been flipped while in custody. That does not, of course, rule out independent action by former detainees. The problem with this assertion, though, is the assumption that the particular detainees cannot be controlled or observed at all after release. No surveillance system is perfect; however, the probability of damage being caused by a previously unknown actor is far, far greater than that for a previously detained actor, if only because the fact of detention will probably scare the living daylights out of many of them. A few could well become unalterably opposed to the US and ready to do anything for vengeance; but continued detention is as likely to do that to family members as to detainees!
- Communication with terrorists at large. Frankly, this is laughable. The best way to screw up a network of nonprofessionals is to salt it with credible disinformation, and released detainees are a perfect vector for such information. The terrorist organizations know this. Further, appropriate surveillance of released detainees will provide valuable information on communication methods actually used by active terrorist organizationseven if we can't spot them communicating, because the negative inference is equally valuable.
Thus, I have a great deal of difficulty accepting the theoretical basis for continued detention, and for most of the detainees I would never reach the particular circumstances.
One might argue that, because the particular circumstances of an individual just might validate continued detention (regardless of its theoretical basis), that specific individual should be subject to continued detention. Assuming arguendo that this is true, what does it say about the proper burdens and procedure? Does it say that blanket detention is proper, or that a particularized showing for a particular individual is proper? There might be some middle ground in there, resting primarily upon the kind of evidence that one can/should accept; but procedurally, the strong implication is that the government should be forced to apply for continued detention, not that the prisoners should be forced to apply for release. The application for detention should be reviewed by someone who is not organizationally involved in the detention, such as a judge. Yes, judges do have and can obtain security clearances; after all, there do not appear to have been any leaks from the FIS court! In fact, that seems to be the perfect forum: the administrative procedures are already in place, the judges already have clearances and some familiarity with intelligence theory and procedure, and at least some advocates have appeared before it.
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So, then: What does the Detainee Trilogy really mean in the end? It is certainly too early for a definitive explanation, particularly as the government has yet to provide any substantive justification for continued detention. Instead, the government has thus far relied upon its purported inherent powers to secrecy in the conduct of foreign and military affairs. The Court rightly objects to the secrecy part of that reliance; but thus far it has not ruled upon the substance. Judicial economy indicates that it should have; but, to do so, the lower courts in the Fourth Circuit would have had to make a factual record sufficient for the review, and it appears from the final opinions that they did not. In a sad sense, then, the judiciary sabotaged itself. It would have been within the District Court judge's discretion to force a much more detailed and extensive factual submission before ruling. This is, in some respects, parallel to the problems with Cheney that I discussed at length last week: (1) (2)
One obvious objection to my conclusions is that I essentially would require the administration to get good lawyers who have junked their rubber stamps involved in making policy. The military seems to manage acceptably with lawyers reviewing target lists prior to planned operations. I just don't see the harm hereparticularly as so many policymakers are lawyers, even if not engaged in the practice of law before assuming their policymaking duties. That's not to say that lawyers must dominate; it is only to say that post hoc justifications, as the Bybee Memo appears to have been, are often counterproductive. The irony that many policymakers distrust lawyers, when in this context competent lawyers would be preaching a certain level of distrust themselves, is a bit much to swallow easily; and I bet that the Australian, British, etc. families of some of the detainees can't even go that far toward compromise.
As an irreverant last remark, I've been referring to these opinions as the Detainee Trilogy for two reasons. First, they really can't be considered in isolation, and there's more than adequate experience in treating related opinions together (Slaughterhouse Cases; Steelworkers' Trilogy). Second, and perhaps most important, it is virtually certain that at least one of these matters is going to end up back in front of the Court, and then we get the fun of assigning numeric identifiers to previous opinions. (If that had been done in Álvarez-Machain, by my count we'd be in the high forties or low fifties.) Particularly since the various cases may well generate different numbers of opinions, and reach the Court in different postures, it seems to me that developing a consistent moniker now is a better option than waiting to see what happens.