Legal Affairs June 2007

A Judicial Overreaction to Bush Abuses?

Congress needs to rethink the war on terrorism's detention and interrogation policy from the ground up.
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A Federal Appeals Court's unanimous rejection on June 11 of President Bush's effort to deny judicial review and due process to a legal alien who has been militarily incarcerated for four years—because Bush says he is a Qaeda agent—was a ringing and welcome defense of our constitutional freedoms.

But I worry that two of the three judges may have gone too far, or exposed a gap in our laws that Congress needs to fill, in their additional, broader holding. It was that Ali Saleh Kahlah al-Marri and other suspected Qaeda terrorists arrested in the United States cannot be detained at all, no matter how dangerous, unless the government brings criminal charges against them within a week of arrest or is unable to deport them.

Whether or not correct as a matter of law, this majority opinion points, in my view, to the need for explicit congressional authorization of prolonged (although not indefinite) detention and aggressive (although not abusive) interrogation of suspected Qaeda agents who cannot be criminally prosecuted. Congress should also require muscular due process safeguards and exacting judicial review, which the Bush administration has furiously opposed, to prevent erroneous detentions of innocent people.

More broadly, the chasm between the views of the president and these two judges on how such cases should be handled illustrates yet again the need for Congress to end its shameful abdication of its duty to rethink the war-on-terrorism's detention and interrogation policy from the ground up.

The easy issue in the al-Marri case is whether foreigners living legally in this country who are suspected of being Qaeda sleeper agents—such as al-Marri, a Qatari graduate student at Bradley University who lived in Peoria, Ill., with his wife and five children—can be subjected to long-term military detention based solely on the president's say-so, with no right to due process or judicial review.

The administration (which plans to appeal) says yes, citing the Military Commissions Act of 2006. The Richmond-based U.S. Court of Appeals for the 4th Circuit correctly said no, for reasons well explained in the unanimous portion of Judge Diana Gribbon Motz's 77-page opinion.

The hard issue is whether suspected Qaeda members who are arrested after legally entering this country—such as al-Marri and (had they been caught) most of the 9/11 hijackers—can be detained for more than a week at all, without the full protections of the criminal process.

Judge Motz (joined by Judge Roger Gregory) makes a plausible (although debatable) legal argument that a never-used, largely forgotten provision of the October 2001 USA PATRIOT Act, as well as judicial precedents and the international law of war, forbids detention of Qaeda suspects in the U.S. without criminal charges for more than seven days, or until they can be deported.

The Motz opinion also provides a chilling explanation of how any decision upholding the administration's due-process-free detention of al-Marri "would effectively undermine all of the freedoms guaranteed by the Constitution," by putting all foreign visitors at risk of being militarily seized and indefinitely imprisoned on weak or nonexistent evidence, and by going some distance toward exposing all U.S. citizens to the same risk.

On the other hand, Motz's suggestion that the criminal-justice system can safely deal with such people is unconvincing. In fact, that system is ill-equipped to handle any future waves of Qaeda attacks on American soil.

To be sure, Americans have become a lot less worried about such attacks during the nearly six years since 9/11. And it's true that the administration has found the criminal process adequate to deal with other Qaeda suspects; al-Marri is the only one arrested in the United States who is now known to be militarily imprisoned.

But how will the Motz ruling look in hindsight if and when Americans are mass-murdered by the thousands again, or if—as seems all too possible—Islamist terrorists get their hands on a nuclear device or lethal germs?

Suppose, for example, that after a series of bombings in Chicago, Washington, and Los Angeles, an anonymous tipster tells the FBI that five Saudi biology students have assembled a large supply of lethal anthrax in two New York City apartments and are planning a massive attack on that city's subway system. The informant also gives the address of one apartment. With no time to get a warrant, FBI agents break into the apartment, arrest two Saudis, and find lots of anthrax and Qaeda literature.

Under Judge Motz's logic, both men would have to be released or deported unless criminally charged within a week—but they could not be criminally charged because the warrantless search would clearly have been illegal. And if (as Motz implies) the captured suspects must immediately be given Miranda warnings and lawyers, that would torpedo any hope of using aggressive interrogation to find their co-conspirators before they launch an anthrax attack.

And consider al-Marri himself. He arrived in this country the day before the 9/11 attacks. The government claims to have evidence that he trained under Osama bin Laden in Afghanistan; sent e-mails to Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks; volunteered for a "martyr mission"; received funds from a Qaeda financier; did research on chemical weapons; frequented jihadist Web sites; and was sent to the U.S. to explore computer-hacking methods to disrupt financial institutions.

If al-Marri had been arrested on, say, September 15, 2001, and seen as part of a wave of possibly imminent follow-on attacks, wouldn't we have wanted the government to hold and interrogate him for at least a couple of weeks without requiring that defense attorneys—whose customary tactic is to zip their clients' lips—be in the room?

Judge Motz specifically asserts that it is illegal for the government to detain a suspect such as al-Marri indefinitely "in order to interrogate him without the strictures of the criminal process." This was an understandable response to the Bush administration's incommunicado interrogation of al-Marri in a South Carolina Navy brig for 16 months, with no contact with his wife, children, or lawyers. Al-Marri has plausibly alleged that he was subjected to extreme sensory deprivation and threatened with being sent to Egypt or Saudi Arabia to be tortured, sodomized, and forced to watch his wife being raped.

But to the extent that the Motz opinion would forbid, say, two weeks of incommunicado interrogation—using methods that are aggressive but stop short of torture and near-torture—Congress should explicitly authorize such detention and interrogation, as part of a comprehensive rethinking of how to handle captured terrorism suspects.

The Motz opinion also implies a legal equivalence between Qaeda terrorists and domestic terrorists "like the Unabomber or the perpetrators of the Oklahoma City bombing" in 1995 that killed 168 people. But Al Qaeda, which murdered 3,000 Americans on 9/11 and openly seeks to murder millions more with nuclear and biological weapons, has both the intention and the capability to inflict harm dwarfing the threat from any domestic group, and from most foreign nations as well.

The logic of the Motz ruling that "military detention of al-Marri must cease" applies, she specified, only to suspects who have substantial ties to the United States and are seized within its borders, not to those now detained at Guantanamo and elsewhere overseas. She stressed that the government has never alleged that al-Marri "is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world." This, Motz stressed, made him an ordinary civilian—not an enemy combatant—under Supreme Court case law and the international law of war.

Dissenting Judge Henry Hudson, who usually sits on a U.S. District Court in Virginia, countered that al-Marri "is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States," and thus was a target of Congress's September 2001 authorization for the president to "use all necessary and appropriate force" against "nations, organizations, and persons" involved in the 9/11 attacks.

The majority and dissenting opinions are both reasonable interpretations of ambiguous laws and precedents. Other judges will also disagree. The best resolution would be for Congress to create a new national security court for such cases and equip it with detailed, congressionally adopted due process rules on all aspects of detention and interrogation. (See my February 24 column.)

Congress ducked these hard issues when it passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. As a result, neither law came close to devising a process that is fair in the eyes of world opinion. This helps explain why world opinion is now so hostile to America—and why it may be getting harder for us to get our hands on bad guys in the first place.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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