Seeking Justice After the Manhattan Terror Attack
(Bloomberg View) -- In the great American tradition of never failing to politicize a tragedy as quickly as possible, it took less than a day after Monday's murderous terrorist attack in lower Manhattan for President Donald Trump to call for the perpetrator to be shipped off to the military prison at Guantanamo Bay, Cuba. Then, after a period of what was clearly deep reflection, Trump called for the DEATH PENALTY! (Twitter all-caps his, not mine.)
While critics are having an all-too-predictable field day with the president's bloodthirsty rhetoric, I’d like to thank him for bringing into the public consciousness some thorny legal issues that have been largely under-discussed and misunderstood since the first detainees were sent to the island prison 15 years ago. Gitmo is hardly an ideal solution for the knotty issue of holding enemies in a never-ending war, but neither is it the "Gulag of our times," to use Amnesty International's description.
Moreover, the scores of legal cases and court decisions involving detentions and arrests -- most emanating from the U.S. Court of Appeals for the D.C. Circuit, as well as the Supreme Court and the military tribunals at Gitmo -- have given us a sort of patchy legal framework for law enforcement during the global war on terrorism. If nothing else, it will keep a passel of law professors employed for the coming decades. So to make sense of how the alleged Manhattan killer, Sayfullo Saipov, might alter the legal balance, I decided to talk to a couple of people leading the debate: Bobby Chesney and Steve Vladeck of the University of Texas Law School.
Chesney is the school's associate dean and director of its Strauss Center for International Security and Law, while Vladeck teaches federal jurisdiction, constitutional law and national security law. They are, respectively, a co-founder and contributing editor to the Lawfare blog, the internet's one-stop shop for all matters relating "hard national security choices," and they co-host the weekly National Security Law Podcast. Here is a lightly edited transcript of our discussion:
Tobin Harshaw: Let's start with something basic -- though I'm betting isn't very basic at all: the term "enemy combatant." Where did it come from, how did it enter the counterterrorism debate, and does it have any legal meaning?
Steve Vladeck: The term has its origin in the Supreme Court’s 1942 decision in Ex parte Quirin, where it was used simply as a descriptive term to refer to those fighting for the other side during a war. After Sept. 11, the U.S. government used the term at least indirectly as a way of not following the conventional status distinctions under the laws of war. But it doesn’t really have any legal meaning today; the question is whether, legally, the individual in question is subject to long-term military detention. The label is simply a reflection of the government’s view of the answer.
Bobby Chesney: The “combatant” part of the phrase has a long and rich history in the laws of war, bound up in the idea of the distinction between civilians and combatants. Part of that history is the idea that those who serve their states in the armed forces are legitimate participants in war, and as such ordinarily entitled to various benefits (POW status, immunity from prosecution for war-related actions other than war crimes). An “enemy” combatant is simply that: a combatant for the other side during a war. Quirin noted that enemy combatants in some cases may lose their privileges, as with spies or a saboteur who poses as a civilian. Thus the idea of a distinction between lawful and unlawful combatants. Famously, the George W. Bush administration categorized al-Qaeda members (and others) as unlawful enemy combatants. Under whatever label, that’s been the basis for detention at Guantanamo ever since.
TH: In the immediate aftermath of the attack, President Trump called for Saipov to be sent to Guantanamo Bay, and senators including John McCain and Lindsey Graham said he shouldn't be given Miranda rights. We're either of those realistic ideas?
SV: I can’t speak to how “realistic” these ideas were; I just think they were both pretty myopic and unnecessary. On Guantanamo, it’s not legally clear that Saipov could even be subjected to military detention; it’s not necessary; and it might even be counterproductive. And on Miranda, the government has lots of options for interrogating terrorism suspects notwithstanding Miranda; it’s just a red herring to suggest that Miranda prevents the government from acting here or in similar cases like these.
BC: I agree. Based on the available facts, it seems Saipov was a lone wolf who was inspired by ISIS, but was not an agent under its control. That already makes it extremely unlikely that a court would agree that he could be held as a military detainee; and a court would certainly be involved. And Steve is right that it is a mistake to think that one must put someone into military detention in order not to proceed down the classic law-enforcement/Miranda/counsel path, if such a path is warranted.
TH: If Saipov hadn't been a permanent legal resident, but here on more tenuous grounds, might they have had a stronger case for military justice?
BC: Military justice -- implying prosecution before a military commission -- presents a different issue from using “mere” detention or interrogating without counsel. And the bottom line here is that there are innumerable reasons to avoid using the military commission system to prosecute cases when you have the civilian option instead. The latter has a near-perfect track record and moves quickly. The former is far more troubled.
SV: As long as he was lawfully present within the U.S. at the time of his arrest, the legal issues would be the same, because, unlike noncitizens captured overseas, he’d have clearly established due process rights. That’s a big part of why we’ve only held one noncitizen arrested inside the U.S. in military detention since Sept. 11.
TH: As far as we know, he was maybe ISIS-inspired and not part of plot directed out of the Middle East. But let's say we find out he is an ISIS sleeper -- would that open the way for a military trial?
SV: It would make it easier for the government to argue that the Military Commissions Act would authorize his prosecution, but the military commissions have been so inefficient and ineffective, and are so bogged down right now (as this week’s news out of Guantanamo underscores), that it just wouldn’t make sense to pursue that option, no matter what the endgame is.
BC: Agreed, it would eliminate the threshold problem that he would not be sufficiently linked to an organization against whom we are fighting a war. There would still be litigation over whether ISIS actually is within the legal scope of the 2001 AUMF, however, and that’s an issue the administration would be better off not litigating.
TH: Another hypothetical: What if he had been interrogated without Miranda or a lawyer present -- could that present problems down the road in terms of prosecution?
BC: No. Sure, it might mean that the prosecution would not be able to introduce any confession at trial, but in this case there is absolutely no need for a confession.
SV: Miranda doesn’t ban interrogations without counsel; it bans the introduction in court of statements obtained from such interrogations (and there’s an exception even to that ban if the statements were motivated by an interest in protecting public safety, rather than inculpating the suspect). So absent something far more egregious than a mere denial of Miranda, no, there really wouldn’t be serious problems with a prosecution -- especially where, as here, there is so much direct, physical evidence against the suspect.
TH: Since 2001, there has been a vast amount of jurisprudence relating to Gitmo, indefinite detention, military tribunals, etc. Can you give us a brief rundown of the pivotal decisions and cases -- Hamdi v. Rumsfeld, Boumediene v. Bush, etc?
SV: In short: On detention, the Supreme Court has held that U.S. citizens, and noncitizens at Guantanamo (and, by implication, here) have a constitutional right to judicial review of their detention -- that’s Hamdi and Boumediene. And Hamdi held that a U.S. citizen captured in an active, foreign combat zone could be held without trial in military detention, although entitled to a meaningful opportunity to challenge the government’s allegations against him before a neutral decision-maker. But almost nothing else has been settled by the Supreme Court. The D.C. circuit has a much richer body of law in the context of noncitizens at Guantanamo, but that’s focused exclusively on noncitizens captured overseas. With regard to commissions, the Supreme Court threw out the first round of George W. Bush administration commissions in Hamdan v. Rumsfeld case in 2006, but has not taken any cases under the Military Commissions Act, which was enacted in response to Hamdan. So most of the key questions really haven’t been settled.
BC: Ditto.
TH: So do you think the legal issues here such as habeas and others are basically enshrined in law, or are more cases going to come along to clear up the gray areas?
BC: While there are many, many areas that could be clarified, I’m doubtful we will see cases that give Scotus that opportunity.
SV: As the last answer suggests, I think there is an awful lot of gray area here -- especially for anyone arrested within the U.S. or less clearly affiliated with al-Qaeda or its direct affiliates.
TH: One case that may be more akin to the Saipov situation was Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. There is also a rather bizarre ongoing matter that readers may not be familiar with: an unidentified U.S. citizen recently captured fighting for Islamic State in Syria. How do those cases inform our understanding of Saipov's future?
SV: Tsarnaev is the closest, and underscores how well our ordinary criminal justice system is set up to handle cases like these. I think the John Doe case is rather different because of the context -- a battlefield capture and someone being held out-of-theater, apparently not because the government wants to, but because they don’t have obvious other options. In some ways, Saipov is exactly the opposite.
BC: Agreed.
TH: Now that he's been charged in the federal criminal system, I assume a military tribunal is out. Trump has now called for his execution -- will that complicate the prosecutors' job?
BC: Trump’s tweet about the “death penalty” unquestionably will be cited by the defense, during the eventual capital trial, as grounds for arguing that the potential jury pool is irremediably tainted. That argument won’t ultimately work, though. The real (and limited) impact is that it will provide a potential window, during the voir dire, for teasing out the views of particular juror candidates, perhaps making it marginally easier for the defense to identify, and have struck, some. As for a military trial, as noted above, that’s just a terrible idea no matter what given how effective and fast civilian trials are in comparison.
SV: A military tribunal isn’t formally out; it’s just that much more politically fraught now. As for the death penalty, yes --there’s a real concern about tainting the jury pool, and although many of us may share the president’s view here, due process requires a criminal process that’s free from even the appearance of undue outside influence. It’s a stupid risk to take, here.
TH: Given the operations so far of the tribunals at Gitmo, it's hard to imagine why anyone looking for harsh justice would want Saipov sent there. Can you explain what exactly so few tribunals have been completed?
SV: There really are a series of culprits, ranging from the shifting nature of the rules to the years spent litigating basic jurisdictional questions to the sheer logistical difficulty of trying these cases in Guantanamo to having to reinvent the wheel on every single procedural question. The more the commissions looked like ordinary criminal trials, the less we’d have to fight over every single one of these issues.
BC: That’s it in a nutshell. It’s hard in this short space to convey the vast array of issues that still remain unresolved in the commission system. No one who is fully aware of the comparative facts and who wants to see timely and reliable results would go with the commissions over the civilian option.
TH: So, is the tribunal system beyond repair, or are they ways to make it functional and efficient?
BC: I think there are two sets of problems, one of which certainly can’t be fixed. First, you have the problems involving what rules and procedures (formal and practical) are used. These have been evolving constantly over the years, generally in the direction of conformity with court-martial procedure. Much of the original gap has been closed. Some problems persist, but in theory they could be addressed. Of course, if the desired end-state is to approximate courts-martial or civilian court, why not just use one of them? At any rate, the second set of problems is not fixable. Whatever the case now, the commissions started off as a terrible mess, and the process of improving on that bad start has itself been interminable and messy. Perceptions of illegitimacy set into stone long ago, and regardless of whether such perceptions remain fair today, this is a significant limit on the utility of the commissions.
SV: The question isn’t whether it’s fixable; it’s whether the government would accept any of the fixes.
TH: On the other side, Trump called the criminal justice system "a joke." I have a feeling you guys disagree.
SV: You could say that. Our criminal justice system sure isn’t perfect, but I shudder to think about living under a system in which verdicts were based upon popular and/or presidential opinion.
BC: It was a terrible moment. The well-established truth is that the criminal justice system is fair, fast and effective, in these cases and in others. The president himself plainly was convinced of this at some point that day, for the next morning he tweeted what amounted to a retraction.
TH: I've written a lot about the need for a new war authorization to replace the one passed by Congress in 2001, before Islamic State even existed. Is there a way a better AUMF could help clarify and put on better legal ground the way we handle detainees?
SV: Absolutely -- and there’s widespread consensus, at least outside of Washington, about how to do it. But inertia is hard to overcome, especially where the war powers are concerned.
BC: At a high level of generality, just about everyone agrees that it would be better to have a fresh and clearer AUMF. Neither Congress nor the White House cares to spend real political capital on this, though, so long as the status quo allows operations to continue as needed. Also, disagreements emerge at the level of detail, with some wanting to add in this-or-that additional constraint and others wanting to use such a bill as a vehicle to widen authorities. Consensus is elusive at that point, and so the status quo just rolls on.
TH: There was a fascinating and terrifying report last week from a group founded by the former FBI counterterrorism expert Ali Soufan on how the defeat of Islamic State may pose a huge problem: tens of thousands of Western jihadists returning home from Syria and Iraq. While only a few hundred at most are Americans, how should we use our legal system to ensure they don't pose a threat?
SV: The same way we always have -- by being thorough in our screening of immigrants and vigilant in our law enforcement at home.
BC: Intelligence, in coordination with border control and law enforcement, will continue to play a critical role. Biometric and other advanced identification technologies will loom large, as will the need to cooperate closely with allies in Europe -- which faces a vastly-larger “returnee” problem than does the U.S.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Tobin Harshaw writes editorials on national security, education and food for Bloomberg View. He was an editor with the op-ed page of the New York Times and the paper's letters editor.
To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net.
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