Mukasey and the Doctrine of Detention

The Senate Judiciary Committee had no shortage of questions this week when it took up the nomination of Judge Michael Mukasey for the next attorney general. From restoring faith in the idea of legal impartiality of Justice Department professionals, to overcoming the demoralizing tenure of Alberto Gonzales, to reasserting the department's role in monitoring the executive's intelligence-collection activities -- the next attorney general has his work cut out for him.

Understanding Mukasey's views on policies past is as least as important as pinning down his plans for detaining terrorist suspects going forward. When the subject came up on Wednesday, Mukasey agreed that Guantanamo is a "black eye." He conceded that there remain "ongoing problems" with aspects of current U.S. detention policy. And he committed to undertake a review of existing Justice Department legal opinions on detention powers, to determine whether he agrees with their interpretation. Congress should eagerly await the results of his review, and demand to see his conclusions.

But the issue here goes well beyond Guantanamo Bay. Mukasey appears to have allied himself with an emerging group of legal pundits who suggest that a new "preventive" detention regime and new national security courts might be necessary to deal with the threat of terrorism in the years ahead. As Mukasey lamented in his August 2007 Wall Street Journal op-ed, the U.S. government lacks a "statute that authorize[s] investigative detention on reasonable suspicion," so that police can detain a potential suspect as investigators continue working to find information that might justify a criminal charge. But while the new-regime advocates earn high marks for creativity, there is more than a little reason to wonder whether the United States really needs another novel detention process to make headway against the international terrorist threat.

We should first be clear on what this issue is not. The question of what to do with the Guantanamo detainees -- and other "high value" suspects whose past treatment may preclude any future prosecution -- has preoccupied Capitol Hill in the past few years, and with good reason. U.S. detention operations need to repair the reputations they've gained over the last six years before the United States can seriously attempt to win over the hearts and minds of those who might otherwise do us ill.

But the unique package of limited corrections necessary to resolve these existing problems should not be mistaken for an answer to the real policy challenges that remain about how best to protect the United States from terrorism. Congress is at risk of letting the hard case of fixing Guantanamo make bad law for all future approaches to terrorist detainees. Mukasey is right that there remains a different and more basic question for Congress to ask -- whether the U.S. government has all the lawful detention power it needs to prevent terrorist attacks.

On that issue, Mukasey's view seems to be that the current criminal justice system cannot meet counterterrorism detention needs. According to Mukasey, terrorism prosecutions have been few and far between, and have risked (and sometimes failed to protect) the disclosure of classified information; further, the special accommodations required in terrorism cases generally lower evidentiary and procedural standards, dumbing down civil liberties protections in even non-terrorism prosecutions. In Mukasey's account, the U.S. government in recent years has thus been forced to resort to unconventional methods -- including, least of all, the use of the material witness statute -- to detain those it suspects of doing harm, but for whom admissible evidence of wrongdoing cannot be found.

But the anecdotes Mukasey relies on, including examples from the Bush administration's recent behavior in the "war on terror," don't particularly prove his case. U.S. citizen Jose Padilla was ultimately successfully prosecuted in criminal court based on admissible evidence the government had gleaned on and before his Chicago arrest. (To the extent there was some force necessitating the administration's resort to indefinite military detention in Padilla's case, it was as likely because, as has been widely reported, the government's initial dirty-bomb case against Padilla depended on unreliable statements made by Abu Zubaydah after he had been unlawfully tortured.)

It is likewise entirely unclear how many actual terrorism prosecutions the administration has pursued -- statistics provided by the Department of Justice have been disputed by nonprofit watchdogs -- much less why the numbers are what they are. Neither is there any reason, beyond assertion, to believe that protections for classified evidence and similar procedural accommodations designed for security-related cases have had an adverse impact on non-terrorism prosecutions for theft, murder, or drug crime.

Perhaps worse, Mukasey's argument for a new approach seems to confuse a mistake made in a singular case -- like the failure to protect properly classified information -- with structural inadequacy of the system across the board. For every terrorist trial like Zacarias Moussaoui's held up regularly (and unfairly) as an example of everything wrong with dealing with terrorists through the criminal process, one can point to a non-terrorist like O.J. Simpson, whose path from arrest through trial was arguably far worse in exposing the downside of our deeply flawed -- but broadly effective -- criminal justice system.

If Congress, or the next attorney general, wants to think seriously about the future of terrorism-related detention power, the analysis supporting any approach should be based on more than the need to correct the badly counterproductive policies of the current administration, or the stray incident in which the otherwise powerful weapon of criminal justice has misfired.

Despite all the equivocations that punctuated Mukasey's testimony this week, he was clear on one thing: his promise to work with Congress in considering a new approach to detentions. Congress should hold him to his word, and be sure he’s asking something more than "what went wrong and how can we fix it?"

Any new detention scheme should be based on, among other things, a strategic vision of America's counterterrorism goals and a clear-eyed assessment of the security costs of detaining more and more people under rules that are something less than the ideal of fairness America has long held out to the world. If Mukasey is interested in making national security policy, he could begin by talking with Congress.

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