Of Detention and Punishment
The U.S. Government has submitted its opposition brief in the Al-Marri case, and the central message is clear:
- The President has the constitutional authority to decide whether an individual should be detained as an enemy combatant and detained indefinitely or charged with a crime and afforded ordinary due process protections.
- Where the President decides that an individual should be classified as an enemy combatant, that judgment cannot be modified or nullified by a court.
The Government’s argument is grounded in an impressive array of legal materials, including landmark Supreme Court Cases (including Milligan and Quirin), the Authorization to Use Military Force (AUMF) and the Patriot Act. Moreover, the Government’s message is buttressed by very appealing vision of the President’s responsibility to his constituents: He must, to whatever extent he can, short-circuit terrorist plans before they’re carried out.
It is easy to rashly dismiss each of the Government’s contentions, especially when they’re assessed individually. As the Government admits, Milligan is really irrelevant, and Quirin is hardly an unimpeachable authority because the enemy combatants in that case were officially affiliated with the Nazi regime. And while the AUMF uses broad and general language (the President must do all that is “necessary and appropriate . . . to protect the United States citizens both at home and abroad”), it nowhere says that the military force the executive branch is entitled to use includes an unfettered power to detain that is beyond judicial review. (The Government argues that the AUMF must be read to authorize any and all detention practices that the President believes would “prevent another September 11.” Here the Government has confused the purpose of the AUMF – which is surely to give the President power to combat terrorism – and the content and scope of the power given under the statute. Suffice it to say that a statute’s purpose should never be used to unlawfully expand the actual power it grants to the legislative or executive branch.) Finally, the responsibility to protect citizens from terrorists should not be interpreted in a way that leads to the endorsement of presidential powers that exceed what is granted in the Constitution.
But if one steps back, and really reflects seriously on the nature of the battlefield (which has no borders or boundaries) and the character of the combatants (who wear no uniforms but are united by an unforgiving religious ideology), the President is in an unenviable position indeed. He must fight a vicious, elusive enemy, a foe deeply committed to what all rational peoples rightly regard as senseless carnage. In doing so, the President must decide how to best U.S. citizens from prospective terrorist attacks without unduly infringing their civil liberties, and whether defendants like Al-Marri should be prosecuted through the criminal justice system or treated as enemy combatants seized in a theater of war bereft of borders. As Orin Kerr of the George Washington Law School provocatively asks, what good normative reason might the President have to classify Al-Qaeda agents as “criminals” when they themselves conceptualize their duties in waging jihad as those of soldiers fighting in a legitimate military struggle against the United States and have in the past been successful in causing significant civilian casualties on nations all over the globe? And what, then, should the President of the United States do when a fellow, with clear financial ties to Al Qaeda and a laptop containing a recipe for hydrogen cyanide, is apprehended within the continental United States?
The President’s position isn’t as crazy as some would have you believe. But the view articulated in the Government’s opposition brief does leave one critical issue unaddressed: We care about indefinite detention not because we want to see terrorists roam free, but rather because detention at some point invariably becomes punitive. Ok, so why does that matter? Don’t terrorists deserve to be punished? Well, yes, if and only if they’re actually terrorists. And therein lies the rub: We want to allow the executive branch to do whatever it takes to stave off terrorist attacks, but we don’t want to capriciously dole out punishment against innocents. The unsettling prospect of punitive detention without charge, which treats a detainee as if he were guilty of something, may therefore be our most intuitive reason for believing that the Presidential authority to designate a person as an enemy combatant cannot be completely unfettered. Or, to put the point another way, we may want to recognize that the President possesses the unqualified power to detain enemy combatants but we are compelled – as a people deeply committed to punishing only the guilty – to place limits on the executive branch’s ability to deploy this otherwise unqualified power.
A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.
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