Detention of Terrorists and the Acceleration of the Convergence Trend

Robert Chesney & Jack Goldsmith

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Last year, Jack Goldsmith and I argued in the pages of the Stanford Law Review that the traditional models of criminal and military detention have converged toward one another in connection with the problem of terrorism.

Potential models for terrorist detention, we explained, span from the pure model of military detention at one extreme to the pure model of civilian criminal trial at the other, with military commissions somewhere in the middle, possessing features of both models. These detention models have traditionally differed along two dimensions: detention criteria (i.e., what the government must prove to detain someone) and procedural safeguards (i.e., the rights and procedures employed to reduce the risk of error in making detention determinations). The military detention model is the least demanding, traditionally requiring a showing of mere group membership in the enemy armed forces, and providing relatively trivial procedural protections for making this determination. At the other extreme, the civilian criminal model is the most demanding, tending to require a showing of specific criminal conduct, and providing defendants with a panoply of rights designed to reduce the risk of erroneous convictions.

We concluded that neither model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniform-less terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act. The traditional criminal model, with its demanding substantive and procedural requirements, is the most legitimate institution for long-term incapacitation. But it has difficulty achieving preventive incapacitation. Traditional military detention, by contrast, combines associational detention criteria with procedural flexibility to make it relatively easy to incapacitate. But because the enemy in this war operates clandestinely, and because the war has no obvious end, this model runs an unusually high risk of erroneous long-term detentions, and thus in its traditional guise lacks adequate legitimacy.

Our main goal was descriptive.  We sought to demonstrate that the two systems were moving, however gradually and awkwardly, to rectify their inadequacies, thereby converging toward one another on procedural and especially substantive criteria for detention. During the past five years the military detention system had instituted new rights and procedures designed to prevent erroneous detentions, and some courts had urged detention criteria more oriented toward individual conduct than was traditionally the case. At the same time, the criminal justice system had diminished some traditional procedural safeguards in terrorism trials, and had quietly established the capacity for convicting terrorists based on criteria that come close to associational status. Each detention model, in short, had become more like the other.  Despite convergence, however, neither model as currently configured presented a final answer to the problem of terrorist detention.  But the convergence trend did identify areas of consensus about detention criteria and procedural safeguards, and highlighted the outstanding issues that any serious detention reform must face. 

* * *

The convergence trend has accelerated considerably since we wrote our article, particularly in connection with military detention.  In the summer of 2008, the Supreme Court held in Boumediene v. Bush1 that the noncitizens held in military detention at Guantanamo have a constitutional right to habeas corpus review, emphasizing that detainees must have a fair opportunity to challenge not only the legal but also the evidentiary basis for their detention, including through the presentation of new evidence.2 Since then, the habeas process has ground forward in federal district court in Washington, with an array of judges grappling with critical procedural questions such as the burden of proof for the government to justify a detention, the extent to which detainees themselves or their attorneys must have access to any classified information that the government wishes to use to justify detentions, and the extent to which the government must assemble and produce relevant information that may be in the possession of the various elements of the intelligence community.  One judge—Richard Leon—already has begun holding hearings on the merits, and on that basis has ordered the release of six detainees for lack of evidence, while affirming the detainability of three others.  Meanwhile, the D.C. Circuit is grappling with an effort by another judge to compel the government to produce the “Chinese Uighur” detainees in his courtroom in D.C., and still another judge is considering whether the same review framework now must apply by extension to the 600-plus detainees held by the U.S. military at Bagram Air Base. 

The election of President Obama does ensure that Guantanamo will cease to operate as a detention facility at some point in 2009.  It is far from clear, however, that closure of Guantanamo also will mark the end of the convergence trend.  President Obama’s executive order directing closure of Guantanamo conspicuously fails to rule out the prospect of continued reliance on military detention in some cases—subject, of course, to searching judicial scrutiny via the post-Boumediene habeas mechanism—though it does place an emphasis on shifting as many detainees as possible into either a repatriation process or the federal criminal justice system.  As to that last option, many commentators have emphasized the sweeping capacities of the material-support and conspiracy statutes as evidence of the adequacy of the prosecution alternative; these are the statutes that embody the convergence trend as it manifests in the criminal law, and greater reliance on them is likely to accelerate that trend. 

Whatever becomes of Guantanamo and its detainees, we continue to believe that it is important for Congress to take an active role in resolving the detention dilemma.  The tensions undergirding the convergence trend are not going to go away; terrorism will not lose its capacity to cause harm on a strategic scale, and terrorists are not going to become more readily identifiable.  The United States requires a politically-sustainable, fair, and effective detention system tailored to those realities.  The convergence process is bringing us gradually towards such a system, but its pace is too slow and its progress insufficient.dingbat



Copyright © 2009 Stanford Law Review.

Robert Chesney is Associate Professor of Law, Wake Forest University School of Law.

Jack Goldsmith is Henry L. Shattuck Professor of Law, Harvard Law School.

This Editorial is based on the full-length Article: Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 STAN. L. REV. 1079 (2008). Click Here for the Full Article

  1. 128 S. Ct. 2229 (2008).
  2. Id. at 2272-74.

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