Legal Commentary

In last Sunday?s post, I attempted a relatively comprehensive critique of the Graham bill (S. 3037), which is supposedly designed to (1) codify existing practices in the post-Boumediene habeas litigation; and/or (2) provide clearer substantive, evidentiary, and procedural rules for courts to follow in these cases. 

In the interest of highlighting two significant trees in a fairly dense forest (and in light of the various intervening exchanges between me and Ben Wittes, Bobby Chesney, and Peter Margulies; and the speech Senator Graham is apparently set to give tomorrow at the American Enterprise Institute), I wanted to focus more specifically on the heart of the problem--i.e., why the substantive detention authority provided by the bill is so troubling (Gabor Rona from Human Rights First already offered his own thoughts in the comments to the first post?they?re worth reading). As I explain in more detail below the fold, in addition to my original observations from last week, the detention authority provided by the Graham bill would dramatically expand existing U.S. law in two other respects: allowing for the stateside detention of U.S. citizens, and focusing on ?material support? as a basis for detention.

Although the Graham bill borrows the critical detention authority language (new 28 U.S.C. § 2256(a)(6)) almost verbatim from the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), there is one vital difference: Whereas the MCA authorizes military commissions only for ?alien unprivileged enemy belligerents,? the Graham bill authorizes detention of ?unprivileged enemy belligerents,? regardless of their citizenship. Thus, the Graham bill would almost certainly apply to U.S. citizens, and it would also likely satisfy the Non-Detention Act, 18 U.S.C. § 4001(a), which provides that ?[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.? Moreover, because the bill incorporates no limits on where detention can occur, it would also likely authorize the detention of U.S. citizens who satisfy the substantive detention criteria even if they are initially arrested within the United States. 

Of course, the Supreme Court in Hamdi held that the 2001 Authorization for the Use of Military Force (AUMF) did authorize the detention of a U.S. citizen, but Justice O?Connor?s opinion for the plurality there relied heavily on the extent to which Hamdi was captured ?on the battlefield,? in an active combat theater in Afghanistan. Where a citizen was picked up stateside, it appeared in 2004 at least that there were five votes to hold that the AUMF did not authorize detention, given Justice Scalia?s dissent in Hamdi and the four-Justice dissent in Padilla. As a result, today it is unclear?at best?whether the AUMF would allow the United States to detain without charges a U.S. citizen captured within the territorial United States. The Graham bill--to the extent that it constitutionally could--would change that.

(2) Pegging Detention Authority to ?Material Support?: 

Of course, authorizing the stateside detention of U.S. citizens might not raise any hackles if the bill only applied to those directly involved in planning acts of terrorism against the U.S. or its allies. But part of why the potential domestic application of the Graham bill is so significant is because the bill goes much further, authorizing the detention without trial of anyone who ?has purposefully and materially supported hostilities against the United States or its coalition partners.? The focus on the ?material support? concept is troubling in at least three respects, which I?ll briefly try to delineate below: 

First, the concept of ?material support? has been given an incredibly broad reading by the federal government, which has used the federal criminal material support statute to prosecute individuals for a wide range of conduct, very little of which resembles anything close to active participation in hostilities. The government has even claimed the authority under 18 U.S.C. § 2339B to prosecute individuals whose only "support" came in the form of speech trying to convince terrorist groups to pursue peaceful measures. Whatever the merits of this reading, it unquestionably sweeps far beyond what me might previously have thought of as "belligerency." 

Second, and related, the Supreme Court just this June upheld § 2339B against constitutional challenge, concluding that the statute was not void for vagueness, and did not otherwise violate the First Amendment even though it was a content-based regulation of speech. So long as the advocacy on behalf of a designated foreign terrorist organization was "coordinated," Chief Justice Roberts concluded, Congress could (and did) constitutionally proscribe it.  Because of Humanitarian Law Project, virtually any ?coordinated? activity with a designated foreign terrorist organization, regardless of its intent or purpose, is the provision of ?material support? in violation of 18 U.S.C. § 2339B. It?s hardly a stretch to see how the same concept could easily be adopted in the detention context--producing a remarkably expansive detention authority, especially vis-a-vis U.S. citizens within the territorial United States. 

Third, even if the material support statute doesn't violate the First or Fifth Amendments, "material support" as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There's certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of "material support," without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities.  In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings. 

In one of his early posts, Ben already offered a bit of a defense of the Graham bill?s treatment of material support. In particular, he suggested that this provision, too, is merely codifying existing practice, since Judge Janice Rogers Brown already relied upon the similar language in the MCA in al-Bihani as informing the scope of the government?s detention authority (in the same opinion that suggested that IHL had no bearing on the scope of the AUMF). But even if that discussion in al-Bihani survived its August dicta-ization by the other seven active D.C. Circuit judges (and I don't think it did), it's a preposterous argument: Congress in the MCA was not even remotely speaking to detention authority--it was dealing with who could be tried by military commissions.  The focus on material support was necessary because one of the offenses that the MCA creates is "providing material support to terrorism," which itself raises constitutional questions concerning Congress's power to create new war crimes and subject them to trial by military commission (and to do so retroactively). In that sense, it is telling that no other judge to consider the issue in any of these cases has found the language of the MCA at all useful in ascertaining the scope of detention authority. The limitless scope of "material support" may have a lot to do with explaining why...