Legal Commentary

New Directions In Terrorism Policy

By Jack M. Balkin

In the wake of Eric Holder?s recent testimony before Congress, and as the Obama administration continues to wrestle with whether to try Khalid Sheik Mohammed before an ordinary or military court, it?s important to recognize the deep source of the ongoing struggle over terrorism policy and law. The question of whether modern terrorism is more like crime or war is the wrong question. And as the incisive constitutional scholar, Alexander Bickel, once wrote, no answer is what the wrong question begets. Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional ?laws of war.? While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government?s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government?s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model ? like the crime model ? was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is ?at war? and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.

The war model is also insufficient for a second reason. Pragmatic as it is, the American constitutional tradition accepts that during wartime government has an extraordinary set of war powers it otherwise lacks. At the same time, precisely because of the breadth of those powers, our constitutional tradition has also recognized that deep tension exists between the war powers and the principles of ordinary constitutional government. Much of our constitutional history since has been occupied in efforts to define the proper spheres of these two seemingly incompatible forms of government.

Grappling with this tension in the aftermath of the Civil War, the Supreme Court concluded that the government did not have the power to try an American citizen, captured in the United States for crimes committed here, before a military commission. And from 1867 through today, the United States has not used military commissions to try those captured in the United States, with the exception of a group of Nazi saboteurs brought to our shores by German U-boats and captured shortly after they set foot on our soil. Modern terrorism challenges this idea, of course, by its focus on launching attacks on U.S. soil. Yet to conclude from that ever present possibility that the government?s war powers ought to operate throughout the country is to give too little weight to the side of our constitutional tradition that tries to preserve, even in the face of this reality, as large a role as possible for the mechanisms of ordinary constitutional government.

Prudent White Houses would insist that Congress step up to the plate on these issues and share responsibility. The administration is reportedly now trying to find common ground with some Senators, such as Senator Graham, on a legislative approach. In the meantime, Senators McCain and Lieberman, unhappy that the Christmas day airplane bomber was given Miranda warnings right away, have already introduced legislation to bring greater clarity to the government?s terrorism policies. But their approach is based wholly on the war model; the clarity it provides is purchased at great cost. Their bill would take away any discretion from the President and require that all ?enemy belligerents? be tried in military courts ? no matter where they are captured, no matter where they committed their war crimes, no matter how high-level an operative or low-level a foot soldier might be involved. As a matter of formal legal power, the bill?s underlying premise might be correct: if the United States has the power to try any enemy belligerent before a military court, it has the power to try all enemy belligerents before such a court (with the exception of American citizens, a context the courts might look at differently). But by treating as irrelevant factors like whether a suspected enemy was captured in the United States, for crimes committed here, this approach gives no weight to the longstanding traditions that seek to keep the government?s extraordinary war powers within boundaries that do as little damage as possible to the commitments of the normal constitutional order.

Morever, while Congress has an essential role to play, it should not command the President to use one court system or the other. Even assuming Congress has the power to command the President in this way, the judgment of which courts to use can implicate military judgments as well as foreign relations concerns ? areas that the constitutional tradition has generally left to executive judgment. If a country is willing to extradite a terrorist suspect only on condition that he be provided a civilian trial, for example, the President should have the option of deciding whether that deal serves the interests of the United States. Other legitimate foreign policy considerations are likely to inform the sensitive judgment about how to deal with terrorist suspects in some individual cases. Tying the President?s hands is, at the least, unwise.

The McCain-Lieberman approach seems driven in part by the belief that intelligence or military agencies ought to be able to interrogate captured enemy belligerents for at least a brief period before they are provided Miranda warnings and turned over to law enforcement. But if so, that would amount to the tail wagging the dog. The question of which tribunal should be used to try alleged enemies is separate from the question of whether they should be subject to a brief period of non-coercive military or intelligence interrogation before being turned over to law enforcement and the ordinary criminal process, including Miranda warnings. Should Congress and the White House believe the latter is a desirable option for non-citizens captured here, like the Christmas bomber, Congress can legislate to remove whatever existing statutory barriers, if any, might stand in the way of a two-stage process of this sort. This is exactly the kind of intermediate approach that borrows from both the war and crime models, but that would be on firmest ground if established through legislation.

To the extent constitutional debates would remain about such a system (which might depend on whether incriminating statements from the initial interrogation or their fruits were used at trial), the Supreme Court has always been most accepting of national-security policies the Congress and President have jointly created, rather than ones adopted through unilateral executive action. Thus, the view that alleged enemy combatants should not be given immediate Miranda warnings, as would be the case with the arrest of ordinary criminal suspects, do not justify a congressional prohibition on civilian trials altogether. Instead, they point to an important role that Congress can play. Rather than tying the hands of the President, Congress can act constructively by adopting rules that effectively remove potential fetters on the effective exercise of executive discretion.

In the years since 9/11, it has become clear that neither the war nor crime framework perfectly suits the range of distinct issues modern terrorism raises. That is not surprising: neither framework was constructed with this context in mind. To craft intermediate approaches and institutions on issues like detention, interrogation, and the forum for trials, we need shared legislative and executive responsibility. Frustrating as the American system of separated executive and legislative powers can be, that approach is the one most likely to yield policies with sufficiently broad consensus to be sustainable, in the courts, in the country, and overseas.

Full post as published by Balkinization on April 16, 2010 (boomark / email).