Wednesday, August 22, 2007

Preventive detention in counterterrorism

(Update, Saturday, August 25, 2007. Let me recommend the exchange of comments between Marty Lederman and Nathan Wagner - thoughtful, and capture the views at issue very well. Welcome, Marty and Nathan, and thanks for your thoughts.)

In response to a question someone put to me about civilianizing the current regime of detention and trial. One among the several reasons why I favor transition from a law of war framework for detention to a regime of a civilian national security court and preventive detention arrangement is that over the long term, terrorist risks to the United States seem to me likely to come increasingly from US citizens and dual nationals (a category that needs to be revisited on both principled and practical grounds).

Those are the people I would be seeking to recruit for terrorism over the long term. I would also be seeking to radicalize Muslim communities and especially youth within the United States - a process already well advanced in Britain - to provide a ground of both recruitment and concealment within the United States over the long term. I would be seeking to use Saudi money to do that - what, really, is CAIR except that? - and gradually to bring into the United States new Muslim populations with pre-existing resentments against the United States. As in Britain, universities in America are the natural secular havens for jihad (and ever more so as universities seek international tuition payments, dressed up in the high-falutin' names of 'global education', diversity, and multiculturalism: ideology suspiciously predictable as a function of the Boomers' baby boomlet passing its university years and universities scrambling to cover high fixed costs).

If terrorist risks to the United States over the long term become significantly more located among US citizens, dual nationals, and residents, and located within rather than without the United States, however, the situation becomes less and less amenable to the designation of enemy combatants and detention under a war-law rubric. As the Padilla case - taken as a whole saga, and not simply the guilty verdicts - shows, courts and, indeed, the public are highly unlikely to accept executive power as the vehicle and the law of war as the substantive law within the domestic United States for US citizens, at least over the long term. Indeed, as much a supporter of the war on terror as I am, I also think it would be legally and morally wrong to treat US citizens in this way. Legitimate emergency powers of the executive cannot be indefinitely extended; it starts to look way too much like Chile's endlessly renewed national security state under Pinochet.

There is moreover a strong civil liberties argument to be made here for why these terrorism cases should be separated from the rest of the criminal justice system. I asked one expert recently what he learned from Padilla, and he said, you must make everything indictable: conspiracy and material support for terrorism in everything but formal name co-incident with adherence to a group. Extend and dumb down the requirements in order to secure convictions. (And anyone who believes that this did not start out under the Clinton administration does not remember the terrorism legislation of 1996, among other things.) Those provisions inevitably bleed over to the rest of the criminal justice system - the Patriot Act, for example, sold to the public as specific to counterterrorism, applied to child pornography and drug crimes and what have you. We need, rather, to increase the civil liberties protections of the existing criminal justice system and (as the Duke case is far from alone in showing) rein in the out-of-control system of prosecutorial discretion. The problem with prosecutorial power in the United States is not the obviously illegal actions of Mike Nifong, but the existing unfettered but legal discretion in the hands of prosecutors nationwide.

But those reforms cannot happen if that same criminal justice system is the front line of defense against terrorism. If you are serious about counterterrorism, then the system will inevitably become even more prosecutor-friendly - to create what, for example, Spain has, effectively an informal preventive detention scheme dressed up as the discretion of the investigating magistrate. It will not be confined to matters of counterterrorism: it will gradually extend itself over the whole criminal justice system, as it is already doing.

If you also accept, as I do, not only these civil liberties arguments, but moreover that the conventional criminal law paradigm is grossly inadequate to prevent terrorist attacks, and not merely investigate them afterwards - I am sorry, but the Padilla conviction offers very little comfort in the matter of prevention - then you need some alternative. The best alternative, in my view, is to give up the war paradigm with respect to counterterrorism within the United States by its own nationals, and shift instead to a civilian national security system endorsed by both political branches of government, legislatively authorized, with a civilian national security court and powers of preventive detention.


Marty Lederman said...

And what would the substantive and evidentiary standards be for this preventive detention? For how long? Checked by whom? Applicable only to terrorism? To terrorism of an "international character"? Why not all dangerous persons, regardless of the possible crimes? What makes this context any different from other foreseeable criminal enterprises (organized crime; street gangs; syndicates; etc.) that we've handled in the criminal justice system for decades?

And if this detention were truly preventive, what would the nature of the incapacitation be? Along the lines of traditional POW treatment? Ordinary criminal incarceration?

Do we really want to have to start answering all these questions? Are you confident we will approve of the eventual answers?

Anonymous said...

What makes terrorism different than other criminal enterprises is that, with ordinary criminality, the threat of consequences - i.e. the justice system - (1) deters many from crime to begin with and (2) restrains the magnitude of the criminality. Law enforcement works as a deterrent because it creates a rational fear of immediate consequences for crime in this world.

Islamic terrorism is not deterable through traditional law-enforcement precisely because its motivations are other-worldly. It is a fundamentally different beast than we have ever faced before.

Your concerns about creeping erosion of civil liberties under a preventative detention regime (especially where some evidence may not be publicly released) do indeed touch the soul of American free society. But Ken Anderson is also trying prevent civil liberties erosion: he fears that, left alone, the present law enforcement system will be stretched to accommodate the new threat - and that the stretching will necessarily alter our approach to the entirely of law enforcement, not merely how we deal with terrorist threats.

I believe Judge Posner is correct: American society will not tolerate terrorist mass-casualty attacks if they are the price of leaving the present system unchanged - that is, if a reasonable argument can be made that they might be prevented through enhanced state powers of surveillance and detention. Like it or not, that will be the political reality if there are further attacks.

The question, then, is whether a special system with special rules can be constructed to deal with the specific problem of terrorism, that - precisely because it is really limited to terrorism - represents less of a threat to general civil liberties than would pulling the entire present system into a more preventative stance. The question is tricky, and I am anxious to see what Ken Anderson's symposium will propose.

No, I don't "really want to have start answering all these questions." And, no, I am not confident that I will be happy with "the eventual answers." But Islamic terrorism really is a different beast than ordinary criminality. And the American public's tolerance for preventable mass-casualty attacks really is limited.

Those are the challenges of our times, and we cannot wish them away.

Marty Lederman said...

Nathan Wagner suggests that we need new rules, not for terrorist threats as such, but for *Islamic* terrorists, because they are uniquely not deterred by criminal sanctions.

I'm not sure how this follows (even assuming the premise).

The point of any preventive detention regime is to identify and incapacitate people who the authorities think are likely to commit bad acts. (I'm eliding here the very thorny question of just how "likely" the danger has to be to justify indefinite detention -- a one percent chance that they will commit crimes? ten percent? more likely than not? proof beyond a reasonable doubt? -- and what evidence would be deemed sufficient to establish such a showing.)

We would (I hope) not detain anyone -- not an Islamic terrorist or an organized mob member, nor anyone else -- unless we thought there were a sufficient likelihood of their being dangerous.

I think, Nathan, that you are simply saying that there are some indicia of dangerousness -- sworn allegiance to Al Qaeda, perhaps? -- that are sufficiently reliable to act upon. Well, if that's the case, then why don't we preventively detain other folks about whom we have equally sufficient indicia of dangerousness? -- e.g., recidivists (obviously they have not been deterred by criminal sanctions); members of organized crime families; members of street gangs that have been responsible for crime; strong advocates of violent uprising; etc.

The simple point is that there are plenty of people out there who we can identify as representing at least some non-trivial threat of future dangerousness. And yet our systems have almost always shunned a preventive detention model to deal with such persons (although that's changing, which concerns me). I agree that the threat of modern jihadist terrorism is a serious one; that there are plenty of distinctions between this threat and others (just as their are *some* distinctions between, say, the movement that produced Tim McVeigh and ordinary criminals); and that we need to respond to this problem with a clear view of those distinctions. It's just not clear to me how those distinctions track onto a proposal for preventive detention.

Anonymous said...

I understand Marty Lederman to argue that any rationale for preventative detention in counter-terrorism contexts is not sufficiently distinct from the potential rationale for using such measures in ordinary law-enforcement contexts. This means, first, that there is no convincing need for a preventative detention system in the US, and, second, that the creation of such a system would necessarily put us on the path to employing it against non-terrorist citizens in ordinary law enforcement contexts, thereby destroying our civil liberties.

Though I am fearful of preventative detention for other reasons, I cannot share these particular concerns.

Marty takes issue with my contention that Islamic terrorism represents a unique threat that requires some form of preventative action, rather than traditional law-enforcement, in part because they are not deterrable by criminal sanctions. But, he argues, the same may be said of certain ordinary criminals such as recidivists and mob bosses.

I might contest that premise. As I mentioned, deterrence goes not only to complete prevention but also to mitigation of magnitude - and I am unconvinced that the existence of criminal sanctions does not materially reduce the magnitude of, for example, mob activity. They only try what they believe they can get away with.

But leaving all that aside, it is not merely non-deterrability that distinguishes Islamic terrorists from ordinary criminals: it is their non-deterrability in combination with their goal of mass casualty attacks. The simple fact is that we would not be having a discussion about the merits of preventative detention were al Qaeda a network of undeterrable car thieves. The American public would never seriously entertain special preventative measures in response to a group that believed your place in Paradise to be secure after you steal 100 vehicles. The American public will, however, demand special preventative measures against people who fly airplanes into buildings, blow up mass-transit, and set off arterial natural gas lines in urban areas, if that is what it would take to stop such attacks.

The magnitude and unique nature of the danger - namely mass casualty attacks - distinguish the terrorist threat from ordinary criminality. The same factors would have to limit the permissible scope of any government power of preventative detention. Terrorist mass casualty plots are in a category of magnitude all their own. It ought to be possible to develop meaningful legal criteria that capture that distinction of magnitude and so prevent the encroachment of preventative techniques on ordinary law enforcement and its procedural safeguards of civil liberty.

"[W]hy don't we preventively detain other folks about whom we have equally sufficient indicia of dangerousness?" The simple answer is that none of the other folks are that dangerous.

I fear the consequences for civil liberty of creating a special system of preventative detention. But my fears stem from the necessary secrecy of its operation with regard to intelligence and evidence, not from the thought that it may be employed against ordinary criminals because the rationale for doing so is somehow indistinguishable from the rationale for employing it against the likes of al Qaeda.

Marty Lederman said...

OK, now we're really starting to unpack this. Thanks for your thoughtful response, Nathan. (Ken, I'd be curious to hear where you are on these questions.)

So the category of folks to be preventively detained would be those who have shown *some* likelihood of performing "mass casualty attacks."

Let's put to the side for now at least four big questions:

1. Why not folks, such as the mob members, who might cause just as much damage as, say, a car bomb, but systemically, over a longer period of time?

2. Isn't it inevitable that once we have preventive detention for this category, the requirement of "mass" would soon fall away -- after all, why not prevent even a single violent crime?

3. Most importantly, let's not kid ourselves -- there is no evidence that the vast majority of those the Bush Administration has detained are likely to commit "mass casualty attacks." Indeed, very many of them are detained not for purposes of incapacitation at all, but instead for possible intelligence value. And so, at least for the time being, there's no realistic likelihood that the U.S. government would agree to limit a preventive detention program to those who might commit "mass casualty attacks." And certainly *other* nations would not feel constrained to be so limited -- and therefore we would soon have the prospect of many people, from many nations, being swept up and indefinitely detained without trial because of some suspicion by *some* country -- even a sincere suspicion -- that they are a danger to commit some crime of violence.

OK, but let's put those difficulties to the side for now. The "mass casualty attacker" is an understandable proposed line of demarcation, so let's see where it takes us.

What sort of evidence would suffice to demonstrate indicia of a sufficient likelihood to engage in mass casualty attacks? After all, presumably there are only a handful of such persons in the U.S., and several hundred?, a thousand?, overseas who might actually commit such heinous crimes.

If we obtain solid evidence of persons plotting such crimes, we can incapacitate them under the ordinary criminal justice system, through conspiracy charges and the like. (Indeed, these days it's enough that they provide "material support" to Al Qaeda, which the government defines to include making oneself available for "services.")

Who does that leave? Presumably, individuals who law enforcement *suspects* of being potential mass-casualty threats, but as to whom there is no significant evidence (not admissible evidence, anyway). What sort and quantum of evidence, then, absent evidence of actual plotting of such attacks, would suffice for preventive detention? Associating with particular bad guys? Studying at a particular madrassah? Fiery speeches?

According to today's Washington Post, to be included on the government's "terrorist watch list," a person must be "a known or suspected terrorist such as those who finance terrorist activities, are known members of a terrorist organizations, terrorist operatives, or someone that provides material support to a terrorist or terrorist organization," said Michelle Petrovich, a spokesman for the Terrorist Screening Center. Is that *fairly* close to the category your'e considering, Nathan?

According to the DOJ IG, the database contained at least *235,000* records as of last fall. Would preventive detention be appropriate for everyone on it? The list led to 20,000 law enforcement "encounters" last year, and Customs and Border Protection officers ended up turning back or handing over to authorities 550 people.

Would those 550 be detainable indefinitely? The original group of 20,000 who were stopped? Why not the hundreds of thousands on the list?

I'm not saying such a system is impossible. But this is merely the tip of the iceberg in terms of the almost impossible questions one would have to answer to get it up and running -- and I haven't even mentioned oversight, nor the administrative questions that would be raised by the prospect of virtual lifetime incarceration without trial. (After all, at what point do they stop posing the danger?)

Anonymous said...

Marty, thanks for your post. I think that to demonstrate that a national security court and national system of prevenative detention are bad ways to address the problems we face, you need to prove EITHER:

(1a) That the present justice system, either as it exists or suitably modified, would be sufficiently effective in averting terrorist mass-casualty attacks - as compared to a system of preventative detention and a national security court, AND

(1b) That the damage to civil liberties from a modified judicial system - supposing such necessary - would be less than the damage from a national security court and preventative detention directed solely at terrorism;

OR you must prove:

(2) That preventative detention cannot possibly be lastingly appropriately limited, and that accepting an increased risk of terrorist mass-casualty attacks would be preferable.

If you are arguing (2), I have sympathy for that position. Certainly we can all imagine preventative detention systems where the cure is far worse than the disease. The problem is that the American public will not tolerate mass casualty attacks if they are preventable. The moment after we suffer such an attack and the public finds out that we had information that could have prented it had not our system precluded us from using the information effectively, no politian will argue that the system is working fine as it is.

I do not think you have offered a persuasive case for (1a) and (1b).

Furthermore, let's keep in mind that there is an unstated third option that all of us reject: namely, an ad-hoc and constantly shifting set of policies grounded in the president's war powers and subject to his discretion. That is what we are doing at present. I have little doubt that it is effective - but its civil liberties protections are entirely dependent on the prudence of the executive - without any formal checks.

The only way to respond to the specific questions you raised in your last post is to know what the preventative detention system would look like. It is easy enough to think of an arrangement that could avert some of the extreme scenarios you envision. But at this point you are dealing with the thoughts only of one person who is not a policy-maker. I'd be happy to go through the thought-experiment if you want to get into such details. But I'm interested in your response to this post first.

Marty Lederman said...

Ah, yes, now we're finding common ground. I can't *prove* that "the present justice system, either as it exists or suitably modified, would be sufficiently effective in averting terrorist mass-casualty attacks - as compared to a system of preventative detention and a national security court," *or* that "the damage to civil liberties from a modified judicial system - supposing such necessary - would be less than the damage from a national security court and preventative detention directed solely at terrorism."

Nor can you prove the opposite. And obviously, whether either of these things were right or wrong would depend *entirely* on the details of the preventive detention regime. And what I've been trying to do is to press to see what those details would be.

To do that, I suppose what I'm really wondering is in which current cases, exactly, do you and Ken think the current system needs to be fixed?

Today, we have two basic responses to potentially threatening individuals (putting aside for now the "material witness" detentions and deportation).

First, we have an extremely small handful of cases that go right into the criminal justice system. Aside from Moussaoui and possibly Richard Reid (and possibly al-Marri, if he had stayed in that system), I'm not sure any of those cases has involved folks who were demonstrated to be threats to commit "mass casualty attacks." And those few who were, well, they were incapacitated within that system.

Then there's the President's mass dragnet of military detentions, which sweeps in *mostly* people who are not such threats, but surely also has captured all those who we genuinely believe *are* such threats (assuming an Al Qaeda connection). Now, I think the standards for such detentions should be tightened up. (See Part II of Friday's Boumediene brief.) But of course I agree that to the extent there *is* proof of a real threat by some of the detainees to perform MCAs on behalf of Al Qaeda, those folks should remain detained, just as soldiers typically are.

So I suppose my question is this: Which cases that are not currently handled by these two systems would you propose to be funneled into the new preventive detention program . . . and why?

Anonymous said...

If whether or not a national security court and preventative detention system would be superior to the criminal justice system - as it now exists or suitably modified - "depends *entirely* on the details of the preventative detention regime," does this not concede that a well-designed system may work? Was not the premise of your original post that we ought never even to consider such a thing?

But very well, the devil may be in the details, to the details we shall go. If you wish. Subject to some limitations and reciprocal agreements.

I have not studied the particulars of the detainee cases sufficiently to answer your question directly and effectively. I'll leave that to Ken Anderson if he wants to jump in. What I can do is outline several scenarios that, I believe, illustrate the need for specific surveilance and detention powers (which powers I would describe in some detail) and argue that those powers are better placed in a special terrorism-focused national security apparatus and preventative detention regime than in ordinary criminal law enforcement. Again, this is only me, not remotely a policy-maker, and I'll leave it up to you whether you want to get that nitty-gritty with me.

However, forgive me if I smell a trap. If I outline new government powers, you could simply respond with a an argument that says little other than "how horrible!" Now, I might well agree with much of that argument. But the point is that I believe those powers (or something similar) necessary for averting mass-casualty attacks and less potentially injurious to to civil liberties if placed within a national security apparatus including a court and preventative detention system, and having certain prodedural safeguards.

Therefore, I would propose a reciprocal agreement. I will set out the details I've mentioned if you agree to respond directly to my illustrative scenarios either by arguing that they are unserious or else by laying out how the system you favor would, in those specific scenarios, (1) do the job of stopping the terrorists and (2) be less potentially injurious to civil liberties. I would also be happy to address any illustrative scenarios you may have under the same arrangement.

This way there is equal exposure on both sides: I would be exposed to a "how horrible!" argument and you would be exposed to a "that won't stop the terrorism!" argument.

I hope that is agreeable - it will probably force us both to think more seriously.

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