By Richard H. Pildes
Sunday, October 10, 2010; A19
American soldiers in Afghanistan capture a Taliban fighter who has launched a rocket-propelled grenade at them. Few people would think that the only answer is to bring him to the United States for a criminal trial. The military's primary battlefield mission is not collecting evidence for prosecution, nor should it be.
If the United States is going to neutralize the threat that the Taliban soldier represents, however, some system of detention, as in more traditional wars, is inevitable. The legal uncertainty about who can properly be put into this system -- Must a detainee have been captured on "the battlefield"? How broad is "the battlefield"? How directly involved in hostilities must a person have been? -- should not obscure this central fact.
Facing this reality, Jack Goldsmith argued on this page ["A way past the detention gridlock," Sept. 10] that Congress and the president should work to put our detention system on stronger moral and legal footing. But Goldsmith did not address the hardest problem in doing so: the specter of indefinite detention. Unless that specter is removed, no system of detention is likely sustainable.
There are only two options for dealing with the problem. First, the president, or the president and Congress, could establish fixed-length terms of detention based on the seriousness and nature of the underlying acts, or the depth and seriousness of the individual's involvement in al-Qaeda or associated terrorist organizations. Fixed terms would eliminate the prospect that the lowest-level foot soldiers would be held as long as the masterminds of Sept. 11, 2001, and ensure that similarly situated detainees are treated similarly. And the United States would show that it recognizes that, while detention might be appropriate and necessary for some core group of fighters who cannot sensibly be tried as criminals, the prospect of prolonged, indefinite detention rightly sends shivers down most spines. (I leave aside those implicated in mass murder, such as the Sept. 11 plotters.)
Indeed, some of the current pressure to prosecute detainees in this context, particularly through military commissions, might arise partly from a perceived need to find a way to limit how long detainees, particularly low-level ones, are held.
Yet criminal prosecution is not well suited to deal with cases like the captured Taliban fighter. Moreover, those who seek to push every detainee into the criminal justice system should recognize that that system is not inherently more protective. Unlike incarceration after conviction, non-criminal detention under the law of war can never be used for punishment; its sole justification is incapacitation. And criminal conviction for material support for terrorism, probably the most common charge, carries a maximum sentence of 15 years in most cases, and a life sentence if death resulted. Fixed terms of detention, based on these factors, might yield shorter terms for low-level fighters.
Second, the United States could create a credible system of periodic hearings to determine whether a detainee should continue to be held. It is not enough to provide one round of legal process to make sure the right person is being held; some way to periodically revisit these cases is also vital. The key inquiry in these hearings would be whether an individual remained so dangerous that his continued detention was a matter of national security. Indeed, detainees held by U.S. forces in Afghanistan receive this kind of periodic review, with the aim of ensuring that only those who remain a serious threat stay in long-term detention. The review is governed by regulations put in place about a year ago.
The issue in these hearings is hardly open and shut. If a detainee "renounces" his allegiance to al-Qaeda or the Taliban, is that sufficient? If local village elders take responsibility for the individual, is that enough? But in the absence of simple, fixed-length terms, a more complex review system of this sort is essential.
Alternatively, the two approaches -- fixed terms and periodic review -- could be combined. Instead of being automatically entitled to release after a certain number of years, a detainee could instead be presumptively entitled to release. A hearing to assess whether he remains a threat could be held. The structure of those hearings could be tied to how strong the presumption of release ought to be.
Non-criminal detention has been a fact of national security policy since Sept. 11, whether in Afghanistan, Iraq or Guantanamo. Defining who may (legally) and should (strategically) be detained is not easy. But if there are good reasons for not putting every captured fighter or terrorist into the criminal justice system, the government will need some system of prolonged non-criminal detention. No such system will be seen as legitimate unless it removes the shadow of endless detention.
Richard Pildes is a professor of law and co-director of the Center on Law and Security at the NYU School of Law.