(Update: Thanks to Ilya for his post above, and Orin for his comment below to this post. Bottom line is that Comstock does not have national security implications.)
Could I put a question to the VC staff who are following Comstock? For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention. Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.
Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.” Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years. At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.
Back at the beginning of the war on terror, post 9-11, I remarked on some panel somewhere that administrative detention had been blessed in the US under some pretty weird circumstances – specifically, the Supreme Court decision, sharply divided, endorsing administrative detention for child sexual predators even after sentence served – that is, the state-created version of what Comstock, as I understand it, is debating. On that panel, which was very early after 9-11, representatives of a couple of civil liberties/human rights groups, which had been arguing that detention of this kind had never happened before, looked surprised. Mind, I have always opposed the original Supreme Court ruling, on grounds that don’t have very much to do with national security administrative detention under civilian, rather than military, authority. But it is certainly the case that the United States has long had mechanisms for administrative civil detention for the long term.
Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?
Michael Ejercito says:
We know for a fact that the internment of Japanese-Americans was upheld in Korematsu . (We should remember that bad policies are not always prohibited by the U.S. Constitution.)
If the Supreme Court rules that the government can continue civil commitment for federal prisoners serving time for sex offenses, then it is hard to imagine why it can not detain captured terrorists, since foreign terrorists have less of a claim to freedom than American citizens.
January 12, 2010, 7:09 pmChris Travers says:
It seems to me that the line really should be:
* Prisoners of war and battlefield prisoners should be able to be put in protective custody as an inherent part of military powers.
January 12, 2010, 7:50 pm* This does not mean we can kidnap someone on the streets of Milan and imprison him/her indefinitely. Individuals detained through other means other than “hot” military action, or in relation to military operations (narrowly defined) probably should be given trials.
* We are not at war with the global terrorist network as such. We are engaged in wars in Iraq and Afghanistan. All other terrorists should be treated as criminals.
Orin Kerr says:
Ken,
I don’t think so. The briefing in this case is just about Congressional power, and I don’t think there’s any question that Congress would have the Article I power to set up a national security detention system.
FWIW, though, I’m presently writing an article on the Fourth Amendment issues raised by national security detention. Let me know if you’re interested in a draft when I have something ready….
January 12, 2010, 8:09 pmChris Travers says:
I would further note that civil commitment tends to be based on parens patriae powers which would seem to be irrelevant to detaining foreigners. Does this seem right?
January 12, 2010, 8:13 pmVisitor Again says:
Mention of a national security detention system brings to mind the lists from the old days of those regarded as political subversives to be rounded up and sent to internment camps or detention centers as national security risks. J. Edgar Hoover maintained such lists at the FBI even after the Attorney General ordered them discontinued.
If such a system is ever established–and there are reports that construction of such detention centers is already underway–it ought to have strict safeguards to ensure that people aren’t confined merely because of their political views. I’m quite sure that if it ever is set in place, it will be abused horrendously, through fear and incompetence as well as outright political malice.
See the Google search results for “national security detention lists subversives.”
January 12, 2010, 9:09 pmHoward Gilbert says:
A soldier gives up his civilian liberties when he enlists. From that point on, he must go where he is told to go and do what he is ordered to do. Sometimes he is ordered to do something that can get him killed. Often he is simply uncomfortable and bored. However, nobody has so far been dumb enough to assert that a US soldier has a Habeas right to a court hearing every time he gets orders to go somewhere he does not want to go.
When a soldier surrenders, the detaining power (the US) now becomes part of his chain of command. He must now follow the lawful orders of US officers just as he previously followed the orders of his own officers. Unlike US soldiers, we cannot order a POW to do things that are dangerous. We can order him to go to a camp in South Carolina, Illinois, or Mississippi and sit out the rest of the war. Legally, he is no different from a US soldier who has received orders to spend the next two years in Fort Frostbutt Alaska. Neither has any legal right to a Habeas review.
A POW loses no liberty by surrendering. After surrender, he has the same liberty (almost none at all) that he had before it. That is why a POW, even if he is also a US citizen, requires no due process under the Fifth Amendment. He loses no liberty or property and is a lot less likely to lose his life by becoming a POW compared to remaining an enemy soldier.
Although an enemy soldier is a potential danger and we hold him in a POW camp to prevent his return to the battlefield, that is a motivation and is not needed as a justification. We send the US soldier to Fort Frostbutt because we need someone there, or because he is useless elsewhere, or because he did something to piss someone off. You don’t need a motive and the justification for ordering a Private to go somewhere and do something is that you outrank him and that is all the justification you need. Once you accept the surrender of a POW you have to take care of him and send him somewhere, so it isn’t particularly surprising that you don’t give him a bus ticket to Chicago.
There are people who imagine that a US citizen who goes to an enemy country, joins the enemy army, and then is captured is entitled to more rights by virtue of his treason than the US patriot who volunteers to defend his country. Fortunately this is not the position of any US court.
There is currently no doubt that someone who is an enemy combatant can be detained for a good long while. The Supreme Court has been unhappy with indefinite detention, but they have not translated that unhappiness into any hard rule. There is absolutely no issue with anyone who admits his status as an enemy combatant.
However, when someone claims that he is not an enemy combatant, then we give him Habeas on the chance that he is telling the truth. It is incorrect to say that we are giving Habeas to enemy combatants. We are giving Habeas to someone who just might not be an enemy combatant.
This suggests a limited scope for any principle of detention after a convicted criminal serves his sentence. Conviction eliminates the uncertainty (is he really a …) that causes the current Habeas review for alleged combatants.
A soldier can commit a crime. That is an additional matter beyond his detention as a POW. A soldier in military custody who is accused of a crime can be tried and if found guilty can serve his sentence. If he is found innocent or completes his sentence and the conflict is still going on, then he simply returns to being a POW and is held and eventually released with the other POWs at the end of the hostilities. If hostilities end before his sentence is up, he finishes his sentence and is then repatriated.
If a non-combatant alien terrorist finishes a sentence, he is deported. If a US citizen terrorist finishes his sentence, then his status is no different from any other serial killer or mass murderer who finishes his sentence. Of course, most mass murders get long enough sentences that we don’t have to worry about release.
Those with mental disease or an uncontrollable predisposition to offend represent one group who might be detained through commitment because they cannot control themselves. Terrorists, serial killers, and drug dealers will either resume their previous activity or not depending on whether they have reformed. They have no uncontrollable mental urges. There is no plausible legal theory to distinguish them from each other or any other type of criminal.
In 1942 the Quirin group of German saboteurs were captured one week after they arrived in the US. The Justice Department realized that although they could prove that these people had come to the US with the intent of committing a crime, they had committed no criminal act during the week and therefore could not be charged with any actual crime. Sixty years later Jose Padilla was captured under nearly identical circumstances. When he told the FBI that he had come to the US on a mission to blow up apartment buildings and kill thousands of Americans, he was not confessing to a crime. Intent all by itself, with no accompanying criminal act, is not a charge you can bring in court. The solution in 1942 and 2002 was to transfer these people to military custody since detention as a POW requires no criminal charge or act.
However, it is very, very unusual where you have proof that someone has the intent of committing terrorism but you can bring no charge. It may not be worth the trouble of creating a whole new legal system if the cases come around once every sixty years and so far have been handled though the armed conflict mechanism.
January 12, 2010, 9:19 pmJustin says:
Are you saying there is a territory distinction as to whether a terrorist is treated as an enemy combatant or a criminal? So if a terrorist that is trained, funded, and supported by Al-Qaeda is captured in the U.S. while trying to carry out a terrorist mission, they would be a criminal? But if the same terrorist was captured in Iraq on his way to the U.S. to carry out a mission he would be treated as an enemy combatant? I don’t think that really makes sense, and maybe that stems from my belief that we are in fact engaged in a war against terrorist organizations that operate globally and not just where we happen to be sending troops after them. Regardless of where the enemy in a war is physically located at the time of engagement, they are the enemy and their status shouldn’t change.
January 12, 2010, 9:23 pmVisitor Again says:
Hmm, the edit function didn’t work for me again because I didn’t realize the time limit isn’t tolled by bringing up the edit box and can run out while one is still editing.
Anyway, a thought I wasn’t able to include:
If we’re to be thinking of implications, as Professor Anderson would have us do , then how about unlimited detention of foreigners as national security risks as one step toward detention, at least in time of national emergency, of U.S. residents and citizens who are regarded as national security risks.
If authority upholding civil detention of U.S. citizens who are sex offender risks is used to support detention of foreigners as national security risks, I don’t see why there won’t be a push to use it as authority for detention of U.S. residents and citizens who are regarded as national security risks.
It seems to me that once you start down this road, there are compelling temptations to continue down it. In time of a true national emergency, the authorities won’t want to be making fine distinctions based on residency and citizenship. The problem, as always, is what safeguards you have in place to determine who is a real threat to national security. If the process is as unreliable as that used to determine who is a risk of committing continued sex offenses–sloppy and unscientific–then civil libertarians have a lot to fear.
January 12, 2010, 9:30 pmVisitor Again says:
Will there be anything in it about the fourth amendment as guardian of the first amendment, which seems to me be be particularly appropriate here?
January 12, 2010, 9:34 pmUgh says:
Really? Would there be any limits on such a system? What would such a system involve?
January 12, 2010, 9:38 pmAmerican Psikhushka says:
The true threat to “National Security” here is that they are trying to water down and eliminate fundamental Constitutional rights like habeas corpus, counsel, speedy and public trial, due process, etc.
January 12, 2010, 11:03 pmAmerican Psikhushka says:
Howard Gilbert-
Two points counter your arguments:
- US military members undertake a voluntary contract agreeing to the terms of military service. And they are paid for their service – there are usually all kinds of records for this, including the received wages. Even after they enlist or are commissioned they retain some Constitutional rights and rights under the UCMJ. They can communicate with their families via mail, e-mail, and phone. In many instances their families live near base. When on leave or off duty they can travel and undertake all kinds of leisure and entertainment activities. They can go to college or attend other classes. Etc, etc, etc… Equating a POW’s life with this is farcical and disingenuous at best.
- The Constitution applies to any person held by US authorities, not just citizens. And if someone is actually classified as a POW they have rights under the UCMJ, the Geneva Convention, and other treaties.
January 12, 2010, 11:26 pmThe Volokh Conspiracy » Blog Archive » Comstock and National Security Detentions says:
[...] Co-blogger Ken Anderson asks: Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens? [...]
January 12, 2010, 11:41 pmVisitor Again says:
This link in my earlier message did not work for some reason. Here it is again.
See the Google search results for “national security detention lists subversives.”
January 13, 2010, 12:19 amHoward Gilbert says:
Enemy soldiers are also volunteers. They volunteer to be part of their army just as US soldiers volunteer to be part of our army. No soldier volunteers to be a POW, but once you surrender you have to follow the orders of the detaining power just as before you followed your own officers.
A real POW has the rights provided through the Geneva Convention. Currently, about 70% of the detainees in Guantanamo live in communal facilities that appear to meet Geneva standards. As it stands now, the Thompson Correctional Facility in Illinois that Obama proposes to transfer detainees to does not conform to Geneva standards. However, I am not here to defend the US from any valid criticism about the conditions of detention.
A POW is a soldier in an enemy army who falls under the control of the US army. Surrender is not a change of status, it is a change of command. That is why it is not a judicial process but rather a clerical function. If you send US forces into combat, there is always the chance that some enemy unit will surrender. Then we have to take their surrender, and suddenly there are a bunch of new soldiers under US command.
Congress may have to appropriate money to provide facilities to house and take care of these new soldiers, and it can legislate standards of care and rules of behavior. Army regulations and the UCMJ indicate proper treatment that should conform with Geneva requirements. Exchange of mail, payment of salary, and all the other stuff deals with conditions of detention and not the authority to detain in the first place. There is nothing Congress must or even can do to authorize the taking and holding of POWs per se. An enemy can surrender. We must take their surrender. At that point, they are POWs. You don’t need to authorize it since you cannot prevent it from happening.
Which is why Congress cannot use military detention of enemy combatants as a model to create some other type of preventive detention for terrorists who are “just like enemy combatants, only different.” Congress did not create the POW status in the first place. The enemy soldiers created all the legal status when they enlisted in the enemy army and agreed to follow orders. That essential first step, from which the entire legal authority for the POW process derives, is not an act of any branch of the US government. It happened in the enemy army in the enemy country.
If a US soldier enlists for 4 years, then he has to serve for 4 years. Nothing in the Constitution gives him the right to back out. There may be some minimum standards of treatment, but he still has to serve out his enlistment no matter what. So if an enemy soldier enlists in the enemy army and is captured, then he has to serve out a hitch as POW for the remaining period of hostilities. Geneva, the UCMJ, the Constitution, Army regulations, all that may set the conditions of detention, but none of it serves to reduce the period of detention by a single day any more than they reduce a US soldiers enlistment by a single day.
Historically, being a POW was not such a bad deal. The average German soldier captured in North Africa in 1942 lived a few years in a Mississippi POW camp, then went home to West Germany, got a job with BMW, and lived a happy and prosperous life. The average German soldier in 1942 who did not get captured by the US either froze to death in the snows of Stalingrad or got run over by a tank in the Battle of Kursk.
Of course things are different in the current conflict, but none of the law, none of the treaties, none of the rules anticipated an enemy that would reject international law and ignore the Geneva Conventions. Still, they are the only rules we have, so we have to make them work.
Criminal sentences, civil commitment, and other forms of civilian detention fall within domestic law. They derive from a completely different source of authority. They are governed by the Constitution. They can be legislated by Congress. Within that context, it may or may not be possible to create some valid form of preventive detention. Just do not imagine that it will be anything like the detention of enemy combatants or that the authority to create this state could possibly arise from what you mistakenly believe is the “same authority under which Congress creates the POW detention system” because Congress has no such authority and didn’t create anything.
January 13, 2010, 12:22 amAmerican Psikhushka says:
Howard Gilbert-
A voluntary (or involuntary, like a draft) contract with a foreign army does not “transfer” when one is captured by another army. In fact, from what I can gather they still only follow their chain of command within POW facilities. They also don’t seem to owe their captors anything but telling them their name, rank, and serial number. So recognizing that the “contract” does not “transfer” like you claim it does collapses your argument.
Also, the Geneva Conventions hinge on the presence of a declared war, a requirement which the current occupations do not entirely meet.
The rest of your post contains references to quotes or statements and arguments that I did not make. I do find your apparent desire to get around important and fundamental Constitutional rights and safeguards to detain people that haven’t been convicted of a crime with full Constitutional due process troubling.
January 13, 2010, 6:08 amHoward Gilbert says:
When an American army unit surrenders, it remains an American army unit. Its members continue to wear US uniforms. They continue to follow the orders of their own officers. They are, however, obligated to follow the lawful orders of the enemy officers to whom they have surrendered. This does not transfer their enlistment contract, just their chain of command.
Sometimes allied military units serve under a US commander (like Eisenhower in Europe). They remain foreign units in their own armies, but must accept orders from a higher ranking officer who happens to be an American. After surrender, much the same thing happens.
The enemy cannot order Americans to give any information other than name, rank, and serial number. They may be ordered to engage in manual labor, but may not be exposed to danger. They can, however, be ordered to dig a hole and fill it up, or to stand at attention for an hour, or to do 40 pushups. Failure to comply with such orders is insubordination and can be punished as they would punish one of their own soldiers who refused a similar order.
Implicitly, of course, they can be ordered to go to a POW camp. They do have a right to attempt to escape, but they cannot refuse the order to go to the camp and their stay in the camp (except for escape attempts) is simply following orders as they would have done had a US general ordered them to go to a camp and stay there until they get further orders.
The Geneva Conventions do not require a declared war. Article II covers a broad variety of armed conflicts, including the case where one party refuses to admit that there is a war at all.
The point I am making is that an enemy combatant in US custody is essentially in the same legal position as a US soldier ordered to go to Alaska even though he would rather be in California. There is not a single legal principle in the status of POWs, however, that matches either a convicted criminal serving a prison sentence or a dangerous mental patient under commitment. There are two ways you can end up in involuntary military custody. You can be a POW, or you can be drafted. They are in many ways interchangeable as to the law, although admittedly we treat our own soldiers better and give them somewhat more freedom until we ship them out to some battlefield where they can get killed. If you prefer to stay alive, being a POW is better than being a draftee.
January 13, 2010, 9:34 amMichael Ejercito says:
Then the rules say that those enemies forfeit the protections of the Geneva Convention.
January 13, 2010, 10:08 amHoward Gilbert says:
The Third Geneva Convention establishes rules for the treatment of Prisoners of War. If it does not apply, because an enemy combatant has done something to place himself outside the scope of Article 4, that doesn’t mean that we can do anything we want or that he is not a prisoner of war. The Geneva Conventions expand on the Hague agreements of 1907, which are still in force, and they in turn expand on customary practice. When Burgoyne surrendered to Gates at Saratoga both sides knew how things worked even though the Hague Agreements and Geneva Convention would not exist for hundreds of years. The basic legal status of a surrendered enemy combatant remains the same whether the Geneva Conventions govern his treatment or something else does.
However, when a signatory to the Geneva Convention (Afghanistan) engages in an armed conflict with another signatory (the US) then the Conventions apply globally to the conflict and can only be waived on a case by case basis. Even though the Taliban and al Qaeda reject international law for religious reasons (“there is no law but Shari’a”) there is no provision in the Geneva system to take such pronouncements into consideration. In fact, for the last sixty years it has been unusual for the US to engage in an armed conflict where the other side follows the Geneva Conventions (Korea, North Vietnam tiger cages, …).
January 13, 2010, 10:56 amMichael Ejercito says:
The Geneva Conventions also authorizes reprisals for violations of the laws of war.
January 13, 2010, 12:05 pmAmerican Psikhushka says:
Howard Gilbert-
The point I am making is that an enemy combatant in US custody is essentially in the same legal position as a US soldier ordered to go to Alaska even though he would rather be in California.
You’re assuming a lot here. If the person in question is not an “enemy combatant” then it is false imprisonment, etc. So it isn’t equivalent to a soldier getting orders. Plus if the individual is a citizen or resident alien there is the derived Constitutional “right to travel”, which includes living in the state of one’s choice.
You can be a POW, or you can be drafted.
Still assuming POW status is accurate.(Which is why we need strong habeus corpus rights to ensure the government isn’t illegally holding innocent people, intentionally or not.)
And aside from certain specialties I believe a draft has to be passed by Congress.
January 13, 2010, 2:50 pm