What's 'All This Hoopla' About Arbitrary, Indefinite Detention?

Jacob Sullum | November 1, 2007

In June a three-judge panel of the U.S. Court of Appeals for the 4th Circuit rejected the Bush administration's unilateral, indefinite detention of Ali al-Marri, a legal U.S. resident born in Qatar, as an "enemy combatant," saying the government had to charge or release him. Yesterday a 10-judge panel of the same court reheard arguments in the case. According to The New York Times, the judges were surprisingly skeptical of the administration's position, given the 4th Circuit's pro-government reputation. "Based on the pointed, practical and frequently passionate questioning," the Times reports, "the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning."

One judge, J. Harvie Wilkinson III, made his position pretty clear. Wilkinson questioned a distinction drawn by the three-judge panel, which noted that Al-Marri, unlike "enemy combatants" Jose Padilla and Yaser Esam Hamdi, was not accused of taking up arms with the Taliban in Afghanistan. Arrested while attending graduate school in Illinois, he was initially held as a material witness. Later he was charged with credit card fraud and lying to the government, then transferred to military custody on the eve of his trial based on a presidential order that identified him as a member of Al Qaeda. If the post-9/11 congressional authorization for the use of military force made the detention of Padilla and Hamdi legitimate, Wilkinson said, "I don't understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us."

In other words, Wilkinson rejects the attempt to restrict the president's detention power by limiting it to soldiers in a finite military conflict. The practical result is that the president can nab anyone anywhere, including a U.S. citizen on U.S. soil, and detain him without charge for any length of time, based on nothing more than an assertion that the prisoner is connected to terrorism. While the three-judge panel worried that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution," Wilkinson seems untroubled by that prospect. According to Legal Times, he said "he didn't understand 'all of the hoopla' surrounding al-Marri's case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II." As for the indefinite nature of detention until the "cessation of hostilities" in the never-ending War on Terror, Wilkinson said Congress can always rescind the president's detention authority "if the perceived threat lapses or diminishes."

As at least one judge noted yesterday, the president's assertion of authority in this area would seem to justify not just unilateral, indefinite, unreviewable detention but secret detention as well. So it would be safer to say "only a handful of people in the United States have been declared enemy combatants that we know about." In any case, Wilkinson seems willing to let the president exercise king-like detention powers until he starts locking up thousands of people, at which point maybe Congress will do something.   

Comments

|11.1.07 @ 12:36PM|#

It is very simple, being a member of Al Qaeda is a crime just like being a member of the Nazi party during World War II or being a member of the mafia is a crime. All the US has to do is declare membership or association with a terrorist organization to be a crime. You then try the people in federal court or in a military tribunal and you don't have to worry about proving that they have done shit beyond be a member of the organization. Then once you have their conviction, you throw them in jail and forget they ever existed. It is not that hard. The administration has taken what should be a very simple process that has been done since the days of hanging pirates and turned into a monumental pain in the ass.

VM|11.1.07 @ 12:39PM|#

The administration has taken what should be a very simple process [...] and turned into a monumental pain in the ass.

fucking beautiful description of government!! (especially this administration), but that's a great summary!

(the rest of that post is a bit too jackbooted for this citizen's tastes, tho)

|11.1.07 @ 12:44PM|#

"he didn't understand 'all of the hoopla' surrounding al-Marri's case, given that only a handful of people in the United States have been declared enemy combatants,..."

Flawless legal reasoning. I'm very impressed. A little injustice is OK but a lot isn't. Wow! What an intricate and subtle mind.

|11.1.07 @ 12:48PM|#

VM,

If you are a member of a group whose sole purpose is terror, I really don't see much reason why you shouldn't be locked up. I don't care what you have or have not done to act on the purpose. How the hell is someone an "innocent member of Al Quada" or any other terrorist group? Granted, there is the issue of getting the right people. We do not want to lock up people who really are not associated with terrorist groups. But the ones who are need to go. That is how we handled the Nazis. We didn't worry in most cases about proving who signed the orders to do this or that. By holding position of sufficient importance within the party you were automatically guilty, end of the discussion. Now, you could of course plead for mercy and talk about how you didn't know and your mother loves you and the like and that might influence your sentence but you were still guilty. Granted it gets a little stickier with Al Qaeda because they don't keep records like the Nazis. Who is a member? That is something for the fact finder to consider; was this guy a real member of the group or did he just have the wrong set of friends? But we expect fact finders to do that kind of thing all the time. We have them make nearly identical determinations in RICO cases. The government needs to stop worrying about proving if this guy is plotting to blow up the world and just prove that he is a member of the organization.

|11.1.07 @ 12:53PM|#

In any case, Wilkinson seems willing to let the president exercise king-like detention powers until he starts locking up thousands of people, at which point maybe Congress will do something.

At which point it will probably be too damned late for Congress to attempt to do anything.

VM|11.1.07 @ 12:55PM|#

John -

thank you for such a well-thought-out response!

Will have to discuss a little later (dammit). :)

cheers,
VM

|11.1.07 @ 1:04PM|#

All the US has to do is declare membership or association with a terrorist organization to be a crime. You then try the people in federal court or in a military tribunal and you don't have to worry about proving that they have done shit beyond be a member of the organization.

It seems very simple, in theory but in my opinion, the problem with this getting to federal court is that you have to actually prove that the defendant is a member of a terrorist organization -- and give the defendant the right to defend themselevs. That includes things like presenting witnesses and other evidence and discovery and the like in court and allowing the defense to challenge and cross examine.

This seems to be something that this administration is loathe to do. Why do you think the administration wanted the Military Commissions Act so badly? You can't present secret evidence or bar the defendant frmo the proceedings or introduce confessions or statements that were gotten via torture in federal court.

|11.1.07 @ 1:07PM|#

If you are a member of a group whose sole purpose is terror, I really don't see much reason why you shouldn't be locked up. I don't care what you have or have not done to act on the purpose. How the hell is someone an "innocent member of Al Quada" or any other terrorist group?

It must be nice to live in a black and white world where organizations must be terrorists because the government says so.

The government is incompetent and corrupt, but you know, not when it comes to things like terrorism and declaring groups (like the Iranian Royal Guard) a terrorist organization. Then they are always pure of heart and completely honest.

Funny how that type of faith in the government doesn't make it's way to other things they do.

|11.1.07 @ 1:10PM|#

So, let me get this right, a judge,...on a court,...being paid to know the law and arbitrate justice,...considers the quantity of people being detained to be an important factor as to whether or not their detention was lawful.

I must have missed the part of the Bill of Rights that stated that they were not individual rights.

|11.1.07 @ 1:10PM|#

John wrote @ 12:48pm

If you are a member of a group whose sole purpose is terror, I really don't see much reason why you shouldn't be locked up. I don't care what you have or have not done to act on the purpose. How the hell is someone an "innocent member of Al Quada" or any other terrorist group?

What is to stop the president from declaring all members of a group whose first name is John to be terrorists? Simple to prove! Slam dunk convictions! Judicial efficiency!

"How in the hell can someone be an innocent member of the group John?"

|11.1.07 @ 1:10PM|#

I'm even more afraid of what Hillary would do with these powers.

|11.1.07 @ 1:13PM|#

John,

I hereby declare you a member of Al Qaeda. Good luck proving that you're not. In fact, I declare my lack of evidence as proof of your evil Islamonazi conspiracy. As a member of such a vile group, you may not contest this accusation since you have no legal rights since you are a member of a terrorist organization. Plpppffffftttttpppttt!!!!

Nat|11.1.07 @ 1:29PM|#

Matthew Yglesias is a standard big-government liberal, but like most mainstream liberal pundits he's very solid on civil liberties (actually, he strongly opposed the DC handgun ban), so I think it's entirely appropriate to quote him here:

I would note that whether or not one thinks it likely that Bush will start ordering his political opponents to be not so much put "in jail" as abducted off the streets and then held incommunicado in secret foreign facilities for an indefinite span of time during which they'll be tortured until, eventually, their coerced confessions as used as evidence for never releasing them, the point I would make is that Bush really has asserted his constitutional right to do this and the main opinion leaders on the right have agreed that there should be no meaningful constraint on his ability to behave in this manner.

|11.1.07 @ 1:30PM|#

We do not want to lock up people who really are not associated with terrorist groups. But the ones who are need to go. That is how we handled the Nazis.

No, this is how the Soviets handled it (except for ones they just shot).

American de-nazification was fairly complicated and people were classified into separate groups depending on their level of participation: major offenders, offenders, lesser offenders, followers, and exonerated persons. Punishment and re-education activities differed for the groups.

lunchstealer|11.1.07 @ 1:35PM|#

If you are a member of a group whose sole purpose is terror, I really don't see much reason why you shouldn't be locked up.

Here's lookin' at you, Dethklok.

|11.1.07 @ 1:39PM|#

"It seems very simple, in theory but in my opinion, the problem with this getting to federal court is that you have to actually prove that the defendant is a member of a terrorist organization -- and give the defendant the right to defend themselevs. That includes things like presenting witnesses and other evidence and discovery and the like in court and allowing the defense to challenge and cross examine."

I have actually reconsidered my position on secret evidence. The way these investigations actually work is you have either tapped phone conversation or e-mails or more than likely an informant within a terror group. The FBI then uses the informer and the intelligence available to build a picture of the terror cell. They will tell you that if they let the defendants see the evidence that caused the government to conclude you are a terrorist destroys means and methods. Once Tom knows that it is Bob who was the informer in the group then Bob is shot as an informer. That sounds good but I don't buy it.

There used to be an old Bob Newhart routine where he talked about Phil Philbrick secret agent and why it was no one at one of the Communist Party meetings Philbrick was always infiltrating and said "anyone else ever notice that whenever we do an operation with Phil we all wind up getting arrested?" It is the same thing here. If everyone around our source goes to jail, it is pretty obvious who the rat was. In addition, the terrorists know that we listen to their phone conversations and read their websites and e-mail. At some point, you get to the point where the source has provided all of the information he is going to provide. There isn't one big "Al Quada Inc." in the sky. These are all loosely associated cells. That makes them harder to fight but it also makes the need to keep sources and methods secret that much less. If you draft the counter terrorism laws properly, I don't see any reason why you can't just arrest these guys and try them in ordinary court. I didn't used to think that but I have reconsidered.

As far as declaring membership in a group to be a crime, we do that all the time through RICO. If it is illegal to be a member of a car theft or prostitution ring, it ought to also be illegal to be a member of a terrorist organization. If your organization is advocating and plotting to engage in violence and terrorist acts, you should go down.

|11.1.07 @ 1:43PM|#

No, this is how the Soviets handled it (except for ones they just shot).

American de-nazification was fairly complicated and people were classified into separate groups depending on their level of participation: major offenders, offenders, lesser offenders, followers, and exonerated persons. Punishment and re-education activities differed for the groups."


Yes it was. But it was still based on the premise that mere membership or holding a particular position made you guilty. The major offenders were often so because of the position they held in the government. If you held a high enough position in the government, it wasn't necessary to prove you did anything. Merely holding the position made you a major offender. Yes, we didn't just shoot them like the Soviets. The US punished some people more than others. There is nothing to say you can't do that here. Some members of Al Qaeda you shoot because they are high enough in the organizations. There is nothing to say that other members get lighter sentences or even commutation if they were just flunkies and provided information after they were arrested.

|11.1.07 @ 2:08PM|#

Hmmmm. "It's the job of a political branch, namely Congress, to protect individual rights. Who am I to judge?" says the judge.

What a disgrace.

thoreau|11.1.07 @ 2:26PM|#

John-

That's a damn good point. If all but one member of the cell is arrested, the informant is useless. Hell, if all members of the cell are arrested (for the sake of appearances) but the informant is quietly released later, you still have to assume that the informant is useless.

Informants are presumably one-shot deals in most cases. Might as well use them to build cases in courts of law, once they've gotten all the info they can get.

|11.1.07 @ 3:08PM|#

Is anyone aware of powers given to government, at any level, that was not abused? What power, when and where (jurisdiction), please.
I'm not joking, I just can't think of one right now.

|11.1.07 @ 3:11PM|#

Thoreau,

The mentality of the intel types is that they want to collect intel forever. They sometimes lose sight of the point of the whole thing, which is to get actionable intelligence and take people out. If it were up to them, you would never make an arrest or a kill. You would just endlessly have these guys under surveilence and build more assets to absolutely no end. I don't trust them when they say they can't reveal something.

Dave Woycechowsky|11.1.07 @ 3:16PM|#

If you are a member of a group whose sole purpose is terror

There are a lot of problems with what John suggests, but I want to focus on two.

I don't think there is such a thing as a group whose "sole purpose" is terror. I mean, all you have to do is house one widow or feed one orphan and the "sole purpose" of your group is no longer terror.

The other problem is the ex post facto law problem. Assuming that it is otherwise permissible to make membership in a group illegal, the person has to become (or at least affirmatively remain) a member of Al Queda after the group is declared to be illegal. You can't declare anything illegal retroactively. It is in the Constitution.

|11.1.07 @ 3:27PM|#

"I don't think there is such a thing as a group whose "sole purpose" is terror. I mean, all you have to do is house one widow or feed one orphan and the "sole purpose" of your group is no longer terror."

Forgive my sloppy language. If your group engages in terror or plotting to do so you are done.

"The other problem is the ex post facto law problem. Assuming that it is otherwise permissible to make membership in a group illegal, the person has to become (or at least affirmatively remain) a member of Al Queda after the group is declared to be illegal. You can't declare anything illegal retroactively. It is in the Constitution."

We do it all the time through RICO. There are MOB bosses rotting in jail right now who were convicted of nothing more than benefiting from illegal activity and being a member of a criminal organization. They don't have to be convicted of actually doing the crimes, just being a member of the organization. It is illegal to be a member of an ongoing criminal organization. It doesn't matter if you are out stealing the cars or running the drugs, if you are a member and benefit from the illegal activity, you are guilty. You cold do the same thing with terrorist cells. Make it illegal to be a member of a group that either engages in or actively prepares to perpetrate terror. It is just a RICO case the only difference being what makes you a member is the participation in the group rather than taking the money. Yeah, you can set up all the orphanages you want, but that is not going to save you anymore than helping widows saved the mafia.


Further, that is exactly what the United Nations did at Nuremburg. There was nothing illegal about being a member of the Nazi party in 1939, yet people were prosecuted for being so in 1945. It is clearly legal under international law to prosecute someone ex post facto for membership in what is later determined to be a criminal organization. That means worst case, you set up an international tribunal on terrorism similiar to Nurmberg and try them there.

Dave Woycechowsky|11.1.07 @ 3:40PM|#

If your group engages in terror or plotting to do so you are done.

So, if Tim McVeigh and Lee Harvey Oswald were Veterans, then we could convict all the Veterans. I am not sure I buy it.

We do it all the time through RICO.

RICO is pretty controversial. Especially when they applied it beyond the mob. Example:

http://supct.law.cornell.edu/supct/html/01-1118.ZS.html

That means worst case, you set up an international tribunal on terrorism similiar to Nurmberg [sic] and try them there.

Yes, I understand the prosecutor's ultimate draem is to make the entire criminal justice system be like the Nuremberg trials. Thank goodness we are not all prosecutors. Nuremberg was an extraordinary remedy for an extraordinary situation. 9/11 *yawn*

|11.1.07 @ 3:43PM|#

John you have waaay too much faith in those who run our government.

Mike Laursen|11.1.07 @ 3:55PM|#

... and you don't have to worry about proving that they have done shit beyond be a member of the organization.

John, please let me introduce you to the Supreme Court upheld freedom of association derived from First Amendment. Supreme Court upheld freedom of association derived from First Amendment, I'd like you to meet John.

deron|11.1.07 @ 4:25PM|#

I am finding it increasingly convenient to embrace being white and christian. It means I have nothing to fear.

Geotpf|11.1.07 @ 5:57PM|#

Dave Woycechowsky-That's a great case site in regards to al Queda. Based on my layman's reading of the ruling, there's no way al Queda could commit a RICO violation, because their goal is coercion (the use of force or threat of force to restrict another's freedom of action), not extortion (obtaining the property from another), and this ruling makes clear that for a RICO violation to occur, extortion must have occured, not merely coercion.

Geotpf|11.1.07 @ 6:03PM|#

Or, to put it another way-The mob wants to steal your stuff. al Queda wants to blow it up. For a RICO violation to occur, somebody's goal must be to steal your stuff, not blow it up.

|11.1.07 @ 8:07PM|#

Uhm, why are ya'll debating with John if he's been declared a terrorist? It could be argued that anyone on this thread is now a part of John's "organization" and should be snatched up and left to rot in a secret cell somewhere.
Just sayin'

grylliade|11.1.07 @ 10:34PM|#

This seems to be something that this administration is loathe to do.

This is stupidly pedantic, especially since no on will see it, but . . . it's something that the administration is loath to do. Loathe is a verb, with a hard (voiced) sound at the end. Loath is an adverb, with a soft (unvoiced) sound at the end. Compare house as a verb and house as a noun.

|11.2.07 @ 12:08AM|#

Come on Bush, try these people as criminals. America isn't at war. "Islamofascism" isn't an enemy nation which is going to sign a surrender document at some point in the near future.

|11.2.07 @ 9:00AM|#

What gets me is that Bush and his toadies are supposed to be "conservatives". I guess they don't care about conserving a little hard fought institution from Anglo-Saxon culture called "habeas corpus."

|11.10.07 @ 10:36AM|#

Someone mentioned the RICO statutes in their comments (as in, locking up people by membership or association has been done for years).

The RICO statutes did set the stage for this type of outrageous prosecution.

RICO is abusive and smacks of the tactics used by dictators.