Terrorism and the convergence of criminal and military detention models.

• Author: Chesney, Robert M.

INTRODUCTION I. THE TRADITIONAL SEPARATION OF CRIMINAL AND MILITARY DETENTION MODELS A. Detention Triggers: Conduct Versus Status 1. Criminal prosecution and individual conduct 2. Military detention and associational status B. Procedural Safeguards II. EVOLUTIONARY PRESSURES A. Pre-9/11 Developments 1. Criminal justice and the preventive state 2. Laws of war and human rights 3. Terrorism and the crime versus war debate B. Post-9/11 Problems with the Traditional Models 1. Criminal model 2. Military detention model III. POST-9/11 CONVERGENCE A. Criminal Prosecution Moves in the Direction of Greater Flexibility 1. Criminalizing membership in terrorist groups or movements a. Section 2339B and group membership liability b. Conspiracy liability and the global jihad movement 2. Managing defendants' access to sensitive information B. Military Detention Becomes Proceduralized 1. The original post-9/11 detention regime and questions of process 2. Combatant status review tribunals 3. Convergence pressure in public opinion and the courts 4. The Detainee Treatment Act and constitutional habeas corpus 5. Military commissions IV. CONVERGENCE AND DETENTION REFORM A. Detention Criteria B. Procedural Safeguards 1. Counsel rights 2. Access to information 3. Limits on use of the fruits of interrogation 4. Publicity 5. Institutions of review CONCLUSION APPENDIX A: COMPARISON OF PROCEDURAL SAFEGUARDS AVAILABLE IN VARIOUS MODELS INTRODUCTION

Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. (1) But despite numerous reform proposals, Congress has declined to address the more consequential issue of military detention without trial in any detail or to address the proper relationship among the three detention mechanisms. (2) The Supreme Court has continued its biannual consideration of detention issues by granting certiorari in Boumediene v. Bush, a case challenging the Military Commissions Act of 2006. (3) But there is little prospect that Boumediene will lay the detention debate to rest.

Potential models for terrorist detention span from the pure model of military detention at one extreme to the pure model of civilian criminal trial at the other, with military commissions somewhere in the middle, possessing features of both models. These detention models have traditionally differed along two dimensions: detention criteria (i.e., what the government must prove to detain someone) and procedural safeguards (i.e., the rights and procedures employed to reduce the risk of error in making detention determinations). The military detention model is the least demanding, traditionally requiring a showing of mere group membership in the enemy armed forces and providing alleged detainees with relatively trivial procedural protections. At the other extreme, the civilian criminal model is the most demanding, tending to require a showing of specific criminal conduct and providing defendants with a panoply of rights designed to reduce the risk of erroneous convictions.

Neither model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act. The traditional criminal model, with its demanding substantive and procedural requirements, is the most legitimate institution for long-term incapacitation. But it has difficulty achieving preventive incapacitation. Traditional military detention, by contrast, combines associational detention criteria with procedural flexibility to make it relatively easy to incapacitate. But because the enemy in this war operates clandestinely, and because the war has no obvious end, this model runs an unusually high risk of erroneous long-term detentions, and thus in its traditional guise lacks adequate legitimacy.

The main goal of this Article is to show how the two systems have moved to rectify their inadequacies and, in doing so, have converged on procedural and especially substantive criteria for detention. During the past five years, the military detention system has instituted new rights and procedures designed to prevent erroneous detentions, and some courts have urged detention criteria more oriented toward individual conduct than was traditionally the case. At the same time, the criminal justice system has diminished some traditional procedural safeguards in terrorism trials and has quietly established the capacity for convicting terrorists based on criteria that come close to associational status. Each detention model, in short, has become more like the other. Despite convergence, neither model as currently configured presents a final answer to the problem of terrorist detention. But the convergence trend does identify areas of consensus about detention criteria and procedural safeguards and highlights the outstanding issues that any serious detention reform must face.

We begin this Article in Part I by establishing baseline accounts of the criminal and military detention models as they have been traditionally understood, including a discussion of why these models have employed distinct detention criteria and procedural safeguards. Part II describes pre-9/11 developments that anticipated post-9/11 convergence, as well as the theoretical grounds for departing from both traditional models. Part III documents the resulting convergence of the two models along the dimensions of both detention criteria and procedural safeguards. Part IV uses the lessons of convergence to outline the task facing would-be reformers.

1. THE TRADITIONAL SEPARATION OF CRIMINAL AND MILITARY DETENTION MODELS

   The traditional models for military and criminal detention have distinct theoretical foundations. Military detention aims to incapacitate in order to prevent future harm in battle, but it in no way implies condemnation of those detained. (4) Criminal punishment, by contrast, aims to condemn, to punish, to provide retribution for specific past conduct, and to deter future bad conduct. (5) Not surprisingly, the legal frameworks for detention under each model differs along two dimensions: the criteria defining those persons who are subject to detention and the procedural safeguards that serve to reduce the risk of a mistake in determining that a particular person satisfies those criteria. This Part summarizes those differences.

   1. Detention Triggers: Conduct Versus Status

      Associational status and individual conduct each play some role as detention criteria in both the criminal and military contexts. Military detention traditionally emphasizes status more than conduct, however, while the reverse is true in the criminal justice system.

      1. Criminal prosecution and individual conduct

         In the American legal tradition, criminal sanctions typically attach to one's conduct and not one's status or associations. There have long been limited exceptions to this rule. For example, Continuing Criminal Enterprise (CCE) (6) and Racketeer Influenced and Corrupt Organizations Act (RICO) (7) offenses involve a form of associational liability. These statutes criminalize participation in organizations that conduct illegal activity. But mere association is not enough for liability to attach in either case; for both CCE and RICO liability, prosecutors must demonstrate the defendant's commission of certain predicate criminal acts. (8) Criminal conspiracy, by contrast, requires no predicate criminal act. But it does require proof that the association took the form of an agreement to commit an offense, and hence can be distinguished from broader approaches to associational liability--at least as traditionally construed. (9)

         An even closer brush with pure membership liability can be found in the Alien Registration Act of 1940 (Smith Act). (10) The Act is best known for its speech-related provisions that were frequently invoked during the Cold War. (11) A handful of Cold War prosecutions, however, turned on the membership ban in section 2(a)(3) of the Act, which made it a felony:

         to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, and such society, group, or assembly of persons, knowing the purposes thereof. (12) The Supreme Court upheld a prosecution under this provision in 1961 in Scales v. United States. (13) It reasoned that criminal punishment can be based on status as a group member as long as the government proves that the defendant (i) was an "active" rather than merely "nominal" member of the group (arguably making Smith Act liability more demanding than conspiracy liability) and (ii) specifically intended to further the group's unlawful ends. (14) Scales thus left open the door to further status-based prosecutions predicated on association, at least subject to a relatively strict mens rea requirement. Nonetheless, though section 2(a)(3) remains on the books today as the third paragraph of 18 U.S.C. [section] 2385, it rarely has seen action and remains best understood as an exception to the general rule in which criminal liability hinges on one's conduct rather than one's associations.

      2. Military detention and associational status

         The Supreme Court explained in a 2004 opinion upholding the detention of Yaser Hamdi that military detention until the cessation of hostilities, without charge or trial, is a "fundamental...