On Indefinite Detention
Ali Saleh Kahlah Al-Marri is a Qatari national and resident of the United States who has been held in solitary confinement, without access to legal representation, since June of 2003. Al-Marri is the only individual seized on U.S. soil who has been held indefinitely on the grounds that he represents “a continuing, present, and grave danger to the national security of the United States.” The Fourth Circuit recently decided that while the President may indefinitely detain suspected al Qaeda members captured in the U.S., procedural safeguards must be adopted so that individuals can challenge the basis on which they have been detained. Frustrated with this decision, Al-Marri’s lawyers have asked the Supreme Court to address a critical question: Does the President of the United States possesses the authority to detain individuals indefinitely where Congress has not explicitly granted such authority?
The answer to this question is already obvious, at least by the petitioner’s lights. The Authorization to Use Military Force (“AUMF”) does not specifically give the President the authority to detain U.S. citizens or residents, nor would such a prerogative – if set out in the AUMF – survive serious constitutional scrutiny. Thus, to rectify the deep flaws in the Fourth Circuit’s analysis, the Supreme Court must intervene to clarify and protect the critical civil liberties at stake.
What should the Supreme Court say? From the perspective of positive law, there is much to recommend the petitioner’s view. First, the AUMF, passed a week after the 9/11 attacks, nowhere gives the President the right to detain unarmed U.S. citizens or residents “captured” on U.S. soil (as opposed to those captured on the battlefield). Second, the Patriot Act, which was enacted several weeks after the AUMF, denies the President the power to detain individuals indefinitely without charge. And third, if allowed to stand, the Fourth Circuit’s decision would blur the lines between civilians and enemy combatants, ushering in a dark future in which civilians may be, under color of law, indiscriminately deprived of their civil liberties.
There’s another vantage point from which to approach the Al-Marri petition, however. To adjudicate Al-Marri, the Supreme Court will have to make a very difficult judgment call concerning the constitutional relevance of the executive branch’s assessments of the degree to which particular individuals represent a threat to the security of the United States. To find in Al-Marri’s favor is to assume that the President’s assessment is irrelevant to the question of whether unfettered, unlimited detention is constitutional. And by the same token, to find against Al-Marri is to assume that the nature of the threat we face is so great that the executive branch ought to be able to detain individuals indefinitely – even those “captured” in the continental United States – despite the absence of clear and explicit statutory or constitutional authority.
Is this the kind of judgment call the Supreme Court should make? It some sense, the Court must make this decision, since the Constitution charges no other branch of government with this judgment call. No other branch may say where the President’s detention powers end and inviolable civil liberties begin. But if the Supreme Court is to undertake this task, how should it do so? Should it simply provide a set of proscriptions, or should the Court articulate a framework in which detention of U.S. citizens and residents is appropriate? One interesting reflection on this question appears in Judge Wilkinson’s dissent (and partial concurrence) in the Fourth Circuit decision in Al-Marri. According to Judge Wilkinson:
“The military detention of American citizens or aliens lawfully within this country is a huge step. It is a mistake to take this step without asking where the journey leads. A failure to locate enemy combatant detentions within a general or principled framework will serve only to heighten concerns that open-ended detentions of American citizens lie in the offing. A principled framework, by contrast, addresses the limits of executive authority. While a minimalist method has much to commend it in many circumstances, it has its drawbacks here. This is not an area where ad hoc adjudication provides either guidance or limits, and it leaves the most basic values of our legal system – liberty and security – in limbo.”
Wilkinson’s view that judicial minimalism can be a handicap in cases like Al-Marri is a serious one, and probably right for a number of interlocking reasons. First, as Wilkinson points out, the scope of the executive’s detention authority depends not only on whether the AUMF explicitly allocates that power to the executive branch, but also on whether the Constitution permits that form of detention. After all, Congress cannot authorize what the Constitution prohibits.
Second, crafting a reasonable approach to detention is simply not possible without the Court’s involvement because the AUMF and the Patriot Act can be interpreted in a way that renders these laws inconsistent with one another. Congress, in the AUMF, decided to allocate to the President the right to use “all necessary and appropriate force” to prevent further terrorist attacks against the United States. The text of the AUMF does not say whether indefinite detention qualifies as the type of “force” allocated to the executive branch. Since the purpose of the AUMF is to hold those responsible for the September 11th attacks accountable, a purposive reading – which Wilkinson prefers – would allow the President to indefinitely detain suspected terrorists, regardless of where they were captured. However, § 412(a) of the Patriot Act requires the Attorney General to remove or charge suspected terrorists with a criminal offense within seven days of seizure.
Third, and perhaps most importantly, the notion that the criminal justice system can deal effectively with terrorism should be pressure tested, not unreflectively accepted. As Judge Wilkinson observes, “[n]othing in our constitution requires the elected branches to treat terrorism invariably as a criminal offense rather than as an act of belligerency.” Wilkinson, of course, is only half-right here. One would hope that our Constitution is interpreted to mandate robust procedural protections for suspected terrorists. This would show the world that the United States is a civilized nation of laws, even in times of extreme lawlessness. That doesn’t imply that detainees who have received meaningful process must be treated as ordinary criminals – especially not with respect to ensuring that appropriate penalties are imposed for their aggression against the United States. In other words, the constitutional problems inherent in indefinite detention should not dissuade us from thinking very hard about how the United States should prosecute the struggle against terrorism, a formidable foe whose methods and strategies are constantly in flux. Once we separate the issues carefully – cleaving questions of process from those of appropriate penalties – a wider range of constitutionally-sound solutions may come into sharp relief.
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