Forum choice for terrorism suspects

Duke Law Journal

Volumn 61, Issue 7, 2012, Pages 1415-1508

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864796105     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (355)

1. Ken Gude, Conservatives Outraged over Prosecution of Terror Suspect, CTR. FOR AM. PROGRESS (July 6, 2011), http://www.americanprogress.org/issues/2011/07/warsame_trial.html.
2. Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, N.Y. TIMES, July 7, 2011, at A10.
3. I use the terms "forum" and "venue" interchangeably in this Article without intending to draw on their technical legal meanings.
4. See, e.g., Halimah Abdullah, McConnell Says Kentucky Could Face Attack if Terror Suspects Are Held Here, LEXINGTON HERALD-LEADER, June 15, 2011, http://www.kentucky.com/2011/06/14/1774656/mcconnell-says-kentucky-could.html (describing Senator. Mitch McConnell's argument that terrorism suspects arrested in the United States should not be tried in the United States).
5. Mitch McConnell, Op-Ed., The Right Place To Try Terrorists, WASH. POST, June 22, 2011, at A17.
6. Charlie Savage, Attorney General and Senator Clash on Where To Try Terror Suspects, N.Y. TIMES, June 17, 2011, at A20 (discussing an argument between the Obama administration and Senator McConnell over whether suspects captured on American soil should be prosecuted in America or at Guantánamo Bay Naval Base).
7. Charlie Savage, Developments Rekindle Debate over Best Approach for Terrorist Suspects, N.Y. TIMES, Oct. 13, 2011, at A14 (noting some arguments between conservatives and President Obama over forum choice).
8. The Obama administration has taken this position with respect to at least those suspects who are detained inside the United States. See John O. Brennan, Assistant to the President for Homeland Sec. & Counterterrorism, Strengthening Our Security by Adhering to Our Values and Laws, Remarks at Harvard Law School (Sept. 16, 2011), available at http://whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-securityadhering-our-values-an ("[I]t is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will-in keeping with long-standing tradition-be processed through our Article III courts.").
9. See, e.g., OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, STATEMENT OF ADMINISTRATION POLICY: H.R. 1540-NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012, at 2-3 (2011), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr1540r_20110524.pdf ("The Administration strongly objects to the provisions that limit the use of authorized funds . . . regarding prosecution of detainees. . . . If the final bill presented to the President includes these provisions . . . , the President's senior advisors would recommend a veto.").
10. OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, STATEMENT OF ADMINISTRATION POLICY: S. 1867-NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012, at 2-3 (2011), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf (repeating the veto threat).
11. Military Commissions Act of 2009, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2574 (codified at 10 U.S.C. § 948a-950t (Supp. IV 2010)).
12. See, e.g., Walter E. Kuhn, The Terrorist Detention Reform Act: Detention Policy and Political Reality, 35 SETON HALL LEGIS. J. 221, 269-70 (2011) (endorsing continued use of military detention).
13. see also infra Parts I.C-D, IV.A-B.
14. The executive branch has made two failed attempts to resolve the stalemate. First, on November 13, 2009, the Departments of Justice and Defense announced charges against five Guantánamo detainees in federal court and against five others in military commissions. Press Release, U.S. Dep't of Justice, Departments of Justice and Defense Announce Forum Decisions for Ten Guantánamo Bay Detainees (Nov. 13, 2009), available at http://www.justice.gov/opa/pr/2009/November/09-ag-1224.html.
15. The decision to use Article III courts was so controversial that the administration backed down. See Editorial, Cowardice Blocks the 9/11 Trial, N.Y. TIMES, Apr. 5, 2011, at A22. ("That retreat [from trying Khalid Sheikh Mohammed in New York City] was a victory for Congressional pandering and an embarrassment for the Obama administration, which failed to stand up for it."). Second, on January 22, 2010, an interagency task force on Guantánamo announced a series of forum choices. GUANTANAMO REVIEW TASK FORCE, FINAL REPORT, at ii (2010), available at http://www.justice.gov/ag/guantanamo-reviewfinal-report.pdf. Its judgment has never been operationalized.
16. See National Defense Authorization Act for Fiscal Year 2012 (NDAA 2012), Pub. L. No. 112-81, §§ 1021-1034 125 Stat. 1298 (2011). This law is discussed infra at text accompanying notes 312-22.
17. See infra Part IV.
18. Editorial, What To Do with Terror Suspects, WASH. POST, July 5, 2011, at A10.
19. See, e.g., Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REV. 769, 770-71 (2011) (noting the distinction between possible categories for suspected terrorists).
20. see also Gregory Maggs, Assessing the Legality of Law Enforcement Measures Without Characterizing Them as Law Enforcement or Military Action, 80 TEMP. L. REV. 661, 663 (2006) (noting questions about whether military or criminal law applies to certain defendants).
21. Benjamin J. Priester, Who Is a Terrorist? Drawing the Line Between Criminal Defendants and Military Enemies, 2008 UTAH L. REV. 1255, 1257 (distinguishing between criminal defendants and military enemies).
22. Karl S. Chang, Enemy Status and Military Detention in the War Against al-Qaeda, 47 TEX. INT'L L.J. (forthcoming 2012) (arguing that the type distinction in international law is not combatancy but enmity). International law, however, is more complex than this dichotomy suggests: "[t]reaties long have recognized that a state may detain without trial not only opposing armed forces, but also civilians and others who pose threats to its security."
23. Ashley S. Deeks, Administrative Detention in Armed Conflict, 40 CASE W. RES. J. INT'L L. 403, 403 (2009).
24. see also Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 YALE J. INT'L L. 369, 373-74 (2008) (arguing that the debate about the combatant/civilian line is "stale" and arguing that human-rights law provides a new perspective on the proper scope of permissible detention authority under international law).
25. See, e.g., Ronald J. Sievert, War on Terrorism or Global Law Enforcement Operation?, 78 NOTRE DAME L. REV. 307, 351 (2003) (arguing that if the "military approach" to antiterrorism prevails, the United States "will understand that religious fundamentalists who attack military targets in the Middle East or elsewhere and defend their homeland are, in essence, soldiers").
26. Josh Tyrangiel, And Justice For . . ., TIME, Nov. 26, 2001, at 66 (describing President Bush's characterization of terrorists as soldiers as a justification for the use of military commissions).
27. David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 CALIF. L. REV. 693, 728 (2009).
28. see also RICHARD B. ZABEL & JAMES J. BENJAMIN, JR., HUMAN RIGHTS FIRST, IN PURSUIT OF JUSTICE: PROSECUTING TERRORISM CASES IN THE FEDERAL COURTS (2008) (discussing the history of cases addressing terrorism in Article III courts).
29. Michael Ratner & Jules Lobel, Comment, Don't Repackage Gitmo!, NATION, Dec. 25, 2008, at 8 (criticizing arguments "that holding some terror suspects without trial or charges is necessary").
30. Jameel Jaffer & Ben Wizner, Don't Replace the Old Guantánamo with a New One, SALON (Dec. 9, 2008, 6:58 AM EST), http://www.salon.com/2008/12/09/guantanamo_3/singleton. ("The class of people who cannot be prosecuted [in Article III courts] but are too dangerous to let go is either very small or nonexistent.").
31. Not all scholars and commentators draw absolute positions. Some make fine-grained distinctions between suspects based on the locus of capture or the substance of accusations to ascertain who is a "criminal" and who is a "combatant." Professors Gabriella Blum and Philip Heymann allocate suspects to criminal or military venues based on their locus of capture. GABRIELLA BLUM & PHILIP B. HEYMANN, LAWS, OUTLAWS, AND TERRORISTS: LESSONS FROM THE WAR ON TERRORISM 105 (2010).
32. Benjamin Wittes, by contrast, relies on a suspect's status and behavior. BENJAMIN WITTES, LAW AND THE LONG WAR: THE FUTURE OF JUSTICE IN THE AGE OF TERROR 146 (2008).
33. Matthew C. Waxman, Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses, 42 CASE W. RES. J. INT'L L. 245 (2009).
34. For a review of the uses of law enforcement by a former assistant attorney general for national security, see David S. Kris, Law Enforcement as a Counterterrorism Tool, 5 J. NAT'L SECURITY L. & POL'Y 1 (2011).
35. See, e.g., Tom Toles, Editorial, A Framework for Detainees, WASH. POST, Mar. 21, 2011, at A20 ("Just days after President Obama issued an executive order to govern long-term detentions at the U.S. Naval Base at Guantanamo Bay, Cuba, Republican members of the House and Senate shot back by offering their own, strikingly different proposals.").
36. Jack Goldsmith, Op-Ed., A Way Past the Terrorist Detention Gridlock, WASH. POST, Sept. 10, 2010, at A25 (identifying the political deadlock).
37. See Leah Farrall, How al Qaeda Works: What the Organization's Subsidiaries Say About Its Strengths, FOREIGN AFF., Mar.-Apr. 2011, at 128, 136-37 (describing changes to al Qaeda).
38. Keith Johnson, Officials Spotlight Domestic Terrorism Threat, WALL ST. J., Feb. 10, 2011, at A5 ("[L]one-wolf extremists with little or no formal connection to al Qaeda have proliferated and are potentially plotting small-scale attacks in the U.S[.], officials said.").
39. This difficulty is quite apart from the problem of how to sort suspects prior to any threshold adjudication of status. That is, are suspects to be slotted into different venues based on what the suspect has conceded or what the government has alleged? Surprisingly, there is no crisp judicial treatment of this nettlesome question.
40. David A. Weisbach & Jacob Nussim, The Integration of Tax and Spending Programs, 113 YALE L.J. 955, 958 (2004).
41. Institutions can be defined broadly as "clusters of norms with strong but variable mechanisms of support and enforcement that regulate and sustain an important area of social life." DIETRICH RUESCHEMEYER, USABLE THEORY: ANALYTIC TOOLS FOR SOCIAL AND POLITICAL RESEARCH 210 (2009).
42. See Raaj Kumar Sah & Joseph E. Stiglitz, The Architecture of Economic Systems: Hierarchies and Polyarchies, 76 AM. ECON. REV. 716, 716-17 (1986) (arguing that the institutional architecture of complex institutions, and in particular their use of functional redundancies, influences outcomes).
43. see also Todd L. LaPorte & Paula M. Consolini, Working in Practice but Not in Theory: Theoretical Challenges of "High-Reliability Organizations," 1 J. PUB. ADMIN. RES. & THEORY 19, 21-22 (1991) (describing research into optimal organizational form in contexts in which system failures are associated with unacceptably high costs).
44. See infra Part IV.A-B.
45. For a model of political redundancy, see Michael M. Ting, A Strategic Theory of Bureaucratic Redundancy, 47 AM. J. POL. SCI. 274 (2003).
46. For an analysis of redundancy in a different national-security context, see Scott D. Sagan, The Problem of Redundancy Problem: Why More Nuclear Security Forces May Produce Less Nuclear Security, 24 RISK ANALYSIS 935 (2004).
47. For analysis in the corporate-form context, see generally Eric Maskin, Yingyi Qian & Chenggang Xu, Incentives, Information, and Organizational Form, 67 REV. ECON. STUD. 359 (2000).
48. Yingyi Qian, Gérard Roland & Chenggang Xu, Coordination and Experimentation in M-Form and U-Form Organizations, 114 J. POL. ECON. 366 (2006).
49. Redundancy of a different kind has been explored in the criminal-law literature on overcriminalization. See, e.g., Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 230 (2007) (discussing redundancy in the coverage of state and federal criminal law).
50. See William N. Eskridge, Jr. & Philip P. Frickey, An Historical and Critical Introduction to HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW, at lx (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("In a government seeking to advance the public interest, each organ has a special competence or expertise, and the key to good government is not just figuring out what is the best policy, but figuring out which institutions should be making which decisions and how all the institutions should interrelate.").
51. See, e.g., Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639 (1981) (defending the existence of jurisdictional overlap).
52. The most recent contributions in the law literature are Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201 [hereinafter Gersen, Overlapping and Underlapping Jurisdiction].
53. Jacob E. Gersen, Unbundled Powers, 96 VA. L. REV. 301, 315-23 (2010) [hereinafter Gersen, Unbundled Powers].
54. See, e.g., Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CALIF. L. REV. 1655, 1684-91 (2006) (focusing on how centralized the intelligence function should be).
55. See, e.g., Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351 (prohibiting the expenditure of Pentagon funds on detainee transfers).
56. See 10 U.S.C. § 950t(29) (Supp. IV 2010) (allowing conspiracy prosecutions in military commissions).
57. Some scholars have made the distinct point that the military and Article III criminal systems are converging in substantive predicates and procedural constraints. Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 STAN. L. REV. 1079, 1080-81 (2008). Convergence entails common procedural and substantive standards, conditions that are neither necessary nor sufficient to establish jurisdictional overlap. Professors Chesney and Goldsmith's useful article, as a result, does not discuss overlap as that term is used here.
58. That is, redundancy is the product of "institutional development rather than institutional choice." PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS 15 (2004).
59. I bracket the question of who should make the choice of institutional design, Congress or the executive. That is a separate inquiry that raises distinct and complex questions.
60. Further, as I argue elsewhere, abstract principles of structural constitutionalism supply unreliable guides for current policymaking. See Aziz Z. Huq, Structural Constitutionalism as Counterterrorism, 100 CALIF. L. REV. (forthcoming Aug. 2012) (arguing against the use of structural inferences from separation-of-powers principles to policy outcomes in the counterterrorism domain).
61. I do not intend to suggest that normative considerations of fairness, justice, and reciprocity are unimportant, only that it is far more useful to analyze institutional-design choices in quantifiable metrics of accuracy and costs. Arguments couched in terms of normative terminology in the counterterrorism domain risk lapsing into declamatory solecisms with almost no tractable analytic content.
62. There is a related set of problems about duplication and exceptionalism. For example, rather than creating interjurisdictional redundancy, an institutional designer might wish to create jurisdictional redundancy within a specific court system by establishing a specialized Article III bench for terrorism cases or by increasing the number of levels of appellate review. Cf. Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEGAL STUD. 379, 381 (1995) (arguing for investments in appellate review rather than a better trial process because "litigants possess information about the occurrence of error and appeals courts can frequently verify it"). Or the institutional designer might think it preferable to opt out of current jurisdictional arrangements entirely by the simple expedient of transferring suspects to third countries. To maintain tractability in the analysis, I have chosen not to address these extensions. My aim here is more narrow.
63. I identify redundancy as an important parameter, and I nudge readers toward a more positive assessment of redundancy than is standard in the literature.
64. This is not an implausible scenario given the al Qaeda presence in both Yemen and Somalia. See generally STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., AL QAEDA IN YEMEN AND SOMALIA: A TICKING TIME BOMB (Comm. Print 2010) (chronicling the movement of al Qaeda militants to Yemen and Somalia, areas with weak central governments).
65. See, e.g., Press Release, White House Office of the Press Sec'y, White House Review Summary Regarding 12/25/2009 Attempted Terrorist Attack (Jan. 7, 2010), available at http://www.whitehouse.gov/the-press-office/white-house-review-summary-regarding-12252009-attempted-terrorist-attack (describing an attempt by the Nigerian Umar Farouk Abdulmutallab to explode a bomb on a Detroit-bound airplane).
66. Charlie Savage, American Indicted on Terror Charges in Plot To Kill Swedish Cartoonist, N.Y. TIMES, Mar. 10, 2010, at A14 (describing the arrest of Colleen LaRose, a.k.a. "JihadJane").
67. The government's choice set is likely to be smallest when the suspect is a U.S. citizen detained in the United States. But even here, noncriminal detention under the material-witness statute, 18 U.S.C. § 3144 (2006), and perhaps military detention may be available as a matter of current law.
68. I do not include venue options employed by other nations but not by the United States, such as a civilian system specifically designed for terrorist detention. I also do not address the question of why the government should use process at all. The government currently does not use process in all cases. For example, in Iraq and Afghanistan, no formal process external to the detaining entities is used. The U.S. targeted-killing program also operates without external oversight. Yet a wholesale move away from some degree of process seems unlikely. Process seems desirable as a sorting device to minimize errors, as a way to ensure internal discipline within the government, and as a means of minimizing reputational harms and maintaining ruleof-law values.
69. The forum-choice analysis here is artificially cabined to American options. It would be possible to expand the analysis by including the possibility of opt-outs to other jurisdictions. Such transfers, however, seem to me to be relatively rare-or at least I have seen little evidence that they are occurring. To speculate, this may be because some states, such as those in Europe, demand compliance with costly legal rules to effect a transfer whereas others, such as Syria, Jordan, and other historical partners in intelligence cooperation, are not necessarily reliable or stable partners given the changes to Arab political regimes since the beginning of 2011.
70. There is a second military venue-the courts-martial system established under the Uniform Code of Military Justice. See 10 U.S.C. § 818 (2006) (vesting courts-martial with general jurisdiction over any person amenable to trial under the laws of war). But this possibility has not been raised seriously in ongoing debates about terrorist detention, and so it is not analyzed here.
71. For example, the statutory authority for immigration courts is provided in 8 U.S.C. § 1329 (2006), for military commissions in 10 U.S.C. § 817 (2006), and for criminal trials in 18 U.S.C. § 3231 (2006).
72. See 8 U.S.C. § 1227 (2006) (listing the grounds for deportation).
73. See 10 U.S.C. § 950t (Supp. IV 2010) (listing offenses).
74. Article III courts also provide more robust protections than military commissions. For a helpful primer on the procedural differences between military commissions and Article III courts, see JENNIFER K. ELSEA, CONG. RESEARCH SERV., R40932, COMPARISON OF RIGHTS IN MILITARY COMMISSION TRIALS AND TRIALS IN FEDERAL CRIMINAL COURT 8-24 (2010).
75. See, e.g., Khadr v. Bush, 587 F. Supp. 2d 225, 230 (D.D.C. 2008) (rejecting a detainee's request for a stay of military-commission proceedings).
76. See, e.g., Ali v. Rumsfeld, 649 F.3d 762, 771 (D.C. Cir. 2011) (rejecting damages actions on qualified-immunity grounds).
77. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229, 2270 (2008) (discussing a detainee's right on review to supplement the record with exculpatory evidence not previously presented in prior proceedings). Given the stakes for individual defendants, however, I am skeptical that adding civilian court review to a military hearing would have much marginal effect on a defendant's efforts in a first-round review process.
78. One study found that 59.8 percent of terrorism prosecutions between 2001 and 2009 ended in plea deals. See RICHARD B. ZABEL & JAMES J. BENJAMIN, JR., HUMAN RIGHTS FIRST, IN PURSUIT OF JUSTICE: PROSECUTING TERRORISM CASES IN THE FEDERAL COURTS: 2009 UPDATE AND RECENT DEVELOPMENTS, at 9 fig.7.
79. See, e.g., Eric H. Holder, Jr., Attorney Gen. of the U.S., Statement of the Attorney General on the Prosecution of the 9/11 Conspirators (Apr. 4, 2011), available at http://www. justice.gov/iso/opa/ag/speeches/2011/ag-speech-110404.html (noting opposition to the use of Article III courts in certain high-profile cases).
80. For a perspective on battlefield detentions in Iraq, see Robert M. Chesney, Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010, 51 VA. J. INT'L L. 549 (2011). My own experience as counsel for U.S. detainees in Iraq is not wholly consistent with Professor Chesney's presentation, but his article nonetheless contains many valuable insights.
81. CTR. ON LAW & SEC., N.Y. UNIV. SCH. OF LAW, TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2001-SEPTEMBER 11, 2010, at 4 (2010), available at http://www.lawandsecurity .org/Portals/0/documents/01_TTRC2010Final1.pdf.
82. Who Is a Terrorist?: Government Failure To Define Terrorism Undermines Enforcement, Puts Civil Liberties at Risk, TRACREP. (Sept. 28, 2009), http://trac.syr.edu/tracreports/terrorism/215.
83. As Terrorism Prosecutions Decline, Extent of Threat Remains Unclear, TRACREP. (May 18, 2010), http://trac.syr.edu/tracreports/terrorism/231.
84. See Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, 80 S. CAL. L. REV. 425, 446-92 (2007) (reviewing the use of material-support statutes).
85. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, sec. 120005(a), § 2339A, 108 Stat. 1796, 2022-23 (codified as amended at 18 U.S.C. § 2339A (2006)).
86. The statute defines terrorist acts by reference to other provisions in the U.S. Code. A common material-support theory will allege violations of 18 U.S.C. § 956 (2006), which criminalizes the conspiracy to murder, maim, or injure persons in a foreign country. E.g., Indictment at 1, United States v. Mohamed, No. 0:09-cr-00352-RHK-JJG (D. Minn. Nov. 17, 2009) (charging material support under 18 U.S.C. § 956(a)(1)(2006)).
87. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, sec. 303(a), § 2339B, 110 Stat. 1214, 1250 (codified as amended at 18 U.S.C. § 2339B).
88. See 8 U.S.C. § 1189(a)(1), (d)(4) (2006) (vesting the secretary of state with designation authority).
89. See, e.g., Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137-38 (9th Cir. 2000) (invalidating two varieties of material support as impermissibly vague).
90. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2710 (2010) (rejecting the plaintiff's challenge to the applications of 29 U.S.C. § 2339B (2006), one of several materialsupport provisions).
91. cf. Aziz Z. Huq, The Institution Matching Canon, 106 NW. U. L. REV. (forthcoming 2012) (exploring the difficulty of reconciling Holder v. Humanitarian Law Project, 130 S. Ct. 2705, with standard First Amendment doctrine).
92. Suppression of the Financing of Terrorism Convention Implementation Act of 2002, Pub. L. No. 107-197, tit. II, sec. 202(a), § 2339C, 116 Stat. 724, 724-27 (codified as amended at 18 U.S.C. § 2339C (2006)).
93. Material Support to Terrorism Prohibition Enhancement Act of 2004, Pub. L. No. 108-458, tit. VI, subtit. G, sec. 6602, § 2339D, 118 Stat. 3761, 3761-62 (codified at 18 U.S.C. § 2339D (2006)).
94. The offense of treason may be limited by citizenship. But see Carlton F.W. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. PA. L. REV. 863, 877-78 (2006) (suggesting English precedent for the prosecution of aliens for treason). Even if treason is limited to citizens, the substantively cognate sedition conspiracy, 18 U.S.C. § 2384 (2006), can be used against noncitizens. See United States v. Rahman, 189 F.3d 88, 103, 111-16 (2d Cir. 1999) (per curiam) (discussing the relation of treason to seditious conspiracy).
95. E.g., 18 U.S.C. §§ 2339B(d), 2339C(b)(2), 2339D(b) (2006).
96. Indictment at 1-4, United States v. Alwan, No. 1:11 CR-13-R (W.D. Ky. Apr. 14, 2011), available at http://assets.nationaljournal.com/pdf/Unsealed_Alwan_Hammadi_Indictment.pdf.
97. See, e.g., Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003) (rejecting a challenge to the designation).
98. But see People's Mojahedin Org. of Iran v. U.S. Dep't of State, 613 F.3d 220, 225-28 (D.C. Cir. 2010) (finding in favor of a designated organization).
99. E.g., Daniel C. Richman & William J. Stuntz, Essay, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 618-24 (2005).
100. See, e.g., 18 U.S.C. § 1001(a) (prohibiting efforts to conceal material facts).
101. Press Release, U.S. Attorney's Office for the S. Dist. of N.Y., Accused al Shabaab Leader Charged with Providing Material Support to al Shabaab and al Qaeda in the Arabian Peninsula 3 (July 5, 2011), available at http://www.justice.gov/usao/nys/pressreleases/July11/warsameindictmentpr.pdf (describing the indictment).
102. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 507 (2001) ("American criminal law, federal and state, is very broad.
103. It covers far more conduct than any jurisdiction could possibly punish.".
104. See, e.g., United States v. Arnaout, 282 F. Supp. 2d 838, 843 (N.D. Ill. 2003) (discussing a plea agreement to wire-fraud charges after material-support charges were dropped).
105. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 3A1.4 (2011) (describing a terrorism-related sentencing enhancement).
106. Unlike in the United Kingdom, technological restraints are not used as substitutes for detention in the security context. Compare Erin Murphy, Paradigms of Restraint, 57 DUKE L.J. 1321, 1328-45 (2008) (discussing such restraints), with Sec'y of State for the Home Dep't v. AF, [2010] A.C. 2 (H.L.) [64] (appeal taken from Eng.) (establishing a balancing test to determine whether detainees have the right to information about the reasons for their detention).
107. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11 ATTACKS 1 & n.2 (2003), available at http://www.justice.gov/oig/special/0306/full.pdf.
108. see also Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 215 F. Supp. 2d 94, 99 n.7 (D.D.C. 2002) ("On November 5, 2001, [the Department of Justice] indicated that 1,182 people had been detained."), aff'd in part, rev'd in part, 331 F.3d 918 (D.C. Cir. 2003).
109. See Disposition of Cases of Aliens Arrested Without Warrant, 8 C.F.R. § 287.3(d) (2011) (providing an exception to the forty-eight-hour requirement for "emergenc[ies] or other extraordinary circumstance[s]"). These expansions of immigration powers allow the negative inference that there was unused legal authority and institutional capacity within the immigration system before September 2001.
110. Memorandum from Michael Creppy, Chief Immigration Judge, to All Immigration Judges & Court Adm'rs 4 (Sept. 21, 2001), available at http://www.cnss.org/creppy%20memo .pdf.
111. Memorandum from Larry Thompson, Deputy Attorney Gen. of the U.S., to Comm'r, Immigration & Naturalization Serv., Dir., Fed. Bureau of Investigation, Dir., U.S. Marshals Serv., & U.S. Attorneys 1 (Jan. 25, 2002), available at http://news.findlaw.com/hdocs/docs/doj/abscndr012502mem.pdf.
112. U.S. GEN. ACCOUNTING OFFICE, GAO-03-459, JUSTICE DEPARTMENT'S PROJECT TO INTERVIEW ALIENS AFTER SEPTEMBER 11, 2001, at 5 (2003), available at http://www.gao.gov/new.items/d03459.pdf.
113. The National Security Entry and Exit Registration System (NSEERS) was initially applied only to nationals of Iran, Iraq, Libya, Sudan, and Syria, but was extended through three subsequent regulations. See Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed. Reg. 2363, 2364 (Jan. 16, 2003) (enumerating previous iterations of the policy).
114. For examples of post-9/11 regulatory changes that remain in effect, see, for example, 8 C.F.R. § 287.3(d) (2011) (allowing noncitizens to be arrested without being charged, provided that an immigration charge is lodged within a "reasonable period of time").
115. Letter from Margo Schlanger, Officer for Civil Rights & Civil Liberties, U.S. Dep't of Homeland Sec., to Colleagues (Apr. 27, 2011) (on file with the Duke Law Journal).
116. Ashcroft v. Iqbal, 129 S. Ct 1937, 1951 (2009).
117. See, e.g., Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2081 (2011) (stating, in a challenge to the allegedly racially discriminatory use of the material-witness statute, that the Court "has almost uniformly rejected invitations to probe subjective intent," and declining to do so in that case).
118. See 18 U.S.C. § 3144 (2006) (stating that "the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person").
119. cf. Judiciary Act of 1789, ch. 20, 1 Stat. 73 (granting like power). Pursuant to the Federal Rules of Civil Procedure, "[a] witness . . . detained under 18 U.S.C. § 3144 [2006] may request to be deposed by filing a written motion and giving notice to the parties," after which the court "may discharge the witness." FED. R. CIV. P. 15. There is no obvious reason that Ahmed Warsame, for example, could not have been held as a material witness for some period of time, perhaps in relation to criminal cases against other members of al Qaeda.
120. HUMAN RIGHTS WATCH, WITNESS TO ABUSE: HUMAN RIGHTS ABUSES UNDER THE MATERIAL WITNESS LAW SINCE SEPTEMBER 11, at 1-5 (2005), available at http://hrw.org/reports/2005/us0605/us0605.pdf.
121. see also United States v. Awadallah, 349 F.3d 42, 52-60 (2d Cir. 2003) (holding that the material-witness power extends to grand juries as well as criminal trials).
122. In Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011), the material-witness statute was applied to a U.S. citizen. Although I am not aware of any extraterritorial use of the statute, no clear reason suggests that it could not be used extraterritorially.
123. Al-Kidd, 131 S. Ct. at 2079, 2085 (dismissing the petitioner's action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) on this basis).
124. Military Order of November 13, 2001, 3 C.F.R. 918, 919 (2002), reprinted in 10 U.S.C. app. at 856, 857 (2006).
125. See generally David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil over the Guantánamo Military Commissions, 12 LEWIS & CLARK L. REV. 131, 147-68 (2008) (describing the promulgation of rules and initial hearings).
126. Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006).
127. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10, 18, 28, and 42 U.S.C. (Supp. IV 2010)).
128. see also Robert Chesney, The Least Worst Venue, FOREIGN POL'Y (Jan. 21, 2011), http://www.foreign policy.com/articles/2011/01/21/the_least_worst_venue (noting "substantially greater" procedural protections).
129. Military Commissions Act of 2009, Pub. L. No. 118-84, tit. XVIII, 123 Stat. 2574 (codified at 10 U.S.C. §§ 948a-950t (Supp. IV 2010)).
130. see also 10 U.S.C. § 949a (Supp. IV 2010) (granting the secretary of defense the authority to promulgate procedural rules for the commissions that deviate from general courtsmartial rules, but also constraining such authority).
131. 10 U.S.C. § 948b(a).
132. Carol Rosenberg, Terror Trainer Admits Role in al Qaeda Conspiracy, MIAMI HERALD, Feb. 16, 2011, at A4.
133. Press Release, U.S. Dep't of Def., DOD Announces Charges Sworn Against Detainee Nashiri (Apr. 20, 2011), available at http://www. defense.gov/releases/release.aspx?releaseid=14424.
134. Defendants convicted under the 2006 military-commissions statute on material-support grounds challenged their convictions by arguing that the law of war contained no such offense. In June 2011, the en banc United States Court of Military Commission Review-issuing its very first opinion-rejected those arguments, drawing on evidence of the criminalization of analogous conduct through international conventions and by international criminal tribunals. United States v. Hamdan, 801 F. Supp. 2d 1247, 1312-13 (Ct. Mil. Comm'n Rev. 2011).
135. see also United States v. Al Bahlul, No. CMCR 09-001, 2011 WL 4916373, at *38 (Ct. Mil. Comm'n Rev. Sept. 9, 2011) (upholding a second conviction on material-support grounds).
136. Military commissions, like civilian criminal trials, allow for the death penalty. Carol Rosenberg, No Plans Yet for Detainee Executions, MIAMI HERALD, Mar. 11, 2011, at A5.
137. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006)).
138. See generally Aziz Z. Huq, What Good Is Habeas?, 26 CONST. COMMENT. 385 (2010) (summarizing the history of Guantánamo detentions).
139. The first adjudication on the merits of the status of a Guantánamo detainee was in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008).
140. A global network of other facilities also existed. For a useful survey, see JONATHAN HAFETZ, HABEAS CORPUS AFTER 9/11: CONFRONTING AMERICA'S NEW GLOBAL DETENTION SYSTEM 31-45 (2010).
141. See Memorandum from Paul Wolfowitz, Deputy Sec'y of Def., to the Sec'y of the Navy (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (relaying an "Order Establishing Combatant Status Review Tribunal"). The Wolfowitz memorandum was a preemptive response to the possibility of judicial review created by Rasul v. Bush, 542 U.S. 466 (2004).
142. In Rasul v. Bush, the Court held that detainees at the Cuban base could employ statutory habeas jurisdiction to challenge the lawfulness of their detentions. 542 U.S. at 480. In 2005 and 2006, Congress attempted to extinguish that jurisdiction, only to have the Court reject those efforts on Suspension Clause, U.S. CONST. art. I, § 9, cl. 2, grounds. Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008).
143. See Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantanamo: The Boumediene Decision, 2008 SUP. CT. REV. 1, 43 (noting the concern that CSRTs were organized to produce specific results).
144. see also Reply to Opposition to Petition for Writ of Certiorari at 2, Al Odah v. United States, 127 S. Ct. 3067 (2007) (mem.) (No. 06-1196), 2007 WL 922261, at *2 (arguing that "[a]ny review process . . . that limits the court to determining whether the jailor has followed its own rules, and precludes an inquiry into whether the rules themselves are adequate and more than an empty shell, cannot be an adequate or effective substitute for habeas").
145. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-0442 (TFH), Civil Action Nos. 02-cv-0828 et al., 2008 WL 4858241 (D.D.C. Nov. 6, 2008) (setting out the procedural framework for the litigation), amended by Zadran v. Bush, Civil No. 05-CV-2367 (RWR), 2009 WL 498083 (D.D.C. Feb. 25, 2009).
146. The Guantánamo Docket, N.Y. TIMES, http://projects.nytimes.com/guantanamo (last updated Feb. 15, 2012).
147. Exec. Order No. 13,492, 3 C.F.R. 203, 203 (2010).
148. See, e.g., Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351 (prohibiting the expenditure of Pentagon funds on detainee transfers).
149. Supplemental Appropriations Act, 2009, Pub. L. No. 111-32, § 14103, 123 Stat. 1859, 1920 (same).
150. See generally Peter Finn & Anne E. Kornblut, How the White House Lost on Guantanamo, WASH. POST, Apr. 24, 2011, at A1 (describing efforts in Congress to oppose detainee transfer).
151. See Hamdi v. Rumsfeld, 542 U.S. 507, 517-19 (2004) (plurality opinion) ("Congress has in fact authorized [a citizen's] detention, through the AUMF.").
152. See, e.g., Padilla v. Hanft, 423 F.3d 386, 393-95 (4th Cir. 2005) (holding that the AUMF authorizes the president to detain a U.S. citizen as an enemy combatant even if the citizen is arrested on U.S. soil).
153. Ahmed v. Obama, 613 F. Supp. 2d 51, 54 (D.D.C. 2009) (emphasis added) (quoting Respondent's Revised Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay at 3, In Re: Guantanamo Bay Litigation, 613 F. Supp. 2d 51 (D.D.C. 2009) (Nos. 05-1347 (GK), 05-1601 (GK), OS-1678 (GK), and 06-1684 (GK)), ECF No. 174).
154. National Defense Authorization Act for Fiscal Year 2012 (NDAA 2012), Pub. L. No. 112-81, § 1021(b)(1)-(2) (2011), PL 112-81 (Westlaw).
155. See, e.g., Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010, S. 3081, 111th Cong. § 5 (2010) (proposing expansion of the enemy combatant category to include citizens).
156. See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (suggesting that the AUMF allows the detention of any person who can be tried in a military commission).
157. see also Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011) (suggesting that anyone who "purposefully and materially support[s]" al Qaeda can be detained).
158. accord Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011) (per curiam). Case law in the D.C. Circuit defining the scope of AUMF-related detention has basically ignored the Fourth Circuit's holdings in Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), and Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
159. E.g., Uthman, 637 F.3d at 403 n.3.
160. Al-Adahi v. Obama, 613 F.3d 1102, 1104-05 (D.C. Cir. 2010).
161. Awad v. Obama, 608 F.3d 1, 11 & n.2 (D.C. Cir. 2010).
162. The design choices in this adjudicative context do not exactly map onto these categories, but they are similar.
163. See Allan W. Lerner, There Is More than One Way To Be Redundant: A Comparison of Alternatives for the Design and Use of Redundancy in Organizations, 18 ADMIN. & SOC'Y 334, 336 (1986) (offering a typology of redundant institutional-design choices and comparing their advantages and disadvantages).
164. Michael Powell, No Choice but Guilty, WASH. POST, July 29, 2003, at A1 (describing how Article III criminal prosecution was chosen).
165. After two mistrials, Lemorin's five codefendants were convicted in 2009. Vanessa Blum, 5 of Liberty City 6 Guilty, CHI. TRIB., May 13, 2009, § 1, at 14. News reports refer to the Sears Tower, which has since been renamed.
166. See Lemorin v. U.S. Attorney Gen., 416 Fed. App'x 35, 38-39 (11th Cir. 2011) (per curiam) (finding Lemorin removable).
167. Jay Weaver & Jacqueline Charles, Virtual Hookup Connects Grieving Haitian Father to Miami Family, MIAMI HERALD, Apr. 16, 2011, at B4 ("Although Lemorin was acquitted, immigration authorities still deemed him a 'national security' threat under the U.S. Patriot Act passed after the Sept. 11, 2001 terrorist attacks.").
168. Jay Weaver, 'Double Jeopardy' for Accused, MIAMI HERALD, Aug. 31, 2009, at B1.
169. See, e.g., Spencer S. Hsu, Former Fla. Professor To Be Deported, WASH. POST, Apr. 18, 2006, at A3 ("Former Florida professor Sami al-Arian pleaded guilty to one count of conspiring to provide support to a Palestinian terrorist organization and agreed to be deported from the United States in a deal with federal prosecutors . . . .").
170. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 571 (S.D.N.Y. 2002), aff'd in part, rev'd in part sub nom. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev'd, 542 U.S. 426 (2004).
171. Al-Marri v. Wright, 487 F.3d 160, 165 (4th Cir. 2007) (recounting the charging history and dismissal). The author of this Article was counsel to al-Marri.
172. See Padilla v. Hanft, 423 F.3d 386, 391 (4th Cir. 2005) (concluding, by analogy to the facts in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion), that Padilla's detention was authorized). Depending on which facts in Padilla are emphasized, the opinion might be read to apply narrowly to a small class of cases in which a suspect arrives after having been on a foreign battlefield, or broadly, whenever someone enters the United States with instructions from a proscribed terrorist organization.
173. United States v. Mohammed, No. (S14) 93 Cr. 180 (KTD) (S.D.N.Y. Apr. 4, 2011), available at https://webspace.utexas.edu/rmc2289/Nolle%20and%20Unsealing%20Order%20-%204-4-11.pdf.
174. United States v. Hamdan, No. CMCR 09-002, 2011 WL 2923945, at *15 (Ct. Mil. Comm'n Rev. June 24, 2011).
175. Al-Marri was charged on both material-support and conspiracy counts. Indictment, United States v. Al-Marri, No. 09-CR-10030 (C.D. Ill. Feb. 26, 2009), available at http://graphics8.nytimes.com/packages/pdf/topics/budget/al-Marri.pdf.
176. Padilla v. Hanft, 432 F.3d 582, 584-85 (4th Cir. 2005). Padilla was later found guilty on all counts. United States v. Hassoun, No. 0:04-cr-60001-MGC, 2007 WL 2349148 (S.D. Fla. Aug. 16, 2007).
177. Ghailani was convicted on one count of conspiring to destroy buildings and property of the United States and acquitted on 248 other counts. United States v. Ghailani, 761 F. Supp. 2d 167, 170 (S.D.N.Y. 2011) (rejecting a postconviction challenge based on sufficiency of the evidence).
178. See Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006) ("It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm.").
179. See, e.g., Government Response to Defense Motion for Appropriate Relief To Determine if the Trial of This Case Is One from Which the Defendant May Be Meaningfully Acquitted at 6, United States v. Hussayn (Mil. Comm'n Oct. 27, 2011) (on file with the Duke Law Journal) ("Should the accused be acquitted following a trial by military commission, the government could, as a legal matter, continue to detain the accused during hostilities . . . ."). This has the odd consequence of eliminating defendants' incentives to participate in militarycommission proceedings. If military detention can continue after acquittal, it follows a fortiori that it can continue after the end of a commission sentence. Hence, the fact of being sentenced vel non may have no impact on a defendant's expected liberty. Even from the government's perspective, there is something perverse about this situation. In effect, the only social value of a relatively expensive and time-consuming commission proceeding may be symbolic, since it has no necessary effect on the duration of detention. Under these conditions, there is a legitimate question whether noncapital commissions have social value at all.
180. Motion of Defendant To Stay Proceedings at 8, Hamdi v. Rumsfeld, No. 2:02CV439 (E.D. Va. Sept. 24, 2004).
181. See U.S. CONST. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .").
182. See, e.g., Lemorin v. U.S. Attorney Gen., 416 Fed. App'x 35, 40 (11th Cir. 2011) (per curiam) (rejecting the double-jeopardy argument against the use of immigration powers after criminal process).
183. In some cases, counsel's failure to advise a criminal defendant of the "automatic" immigration consequences of a plea agreement may constitute ineffective assistance of counsel under the Sixth Amendment. Padilla v. Kentucky, 130 S. Ct. 1473, 1478, 1483 (2010).
184. See, e.g., Al-Marri v. Hanft, 378 F. Supp. 2d 673, 674-75 (D.S.C. 2005) (noting dismissal with prejudice).
185. Cf. United States v. Welborn, 849 F.2d 980, 983-84 (5th Cir. 1988) (distinguishing the effect of a dismissal with prejudice from that of a dismissal without prejudice).
186. The prejudicial effect of an earlier dismissal is distinct from double-jeopardy concerns. See United States v. Terry, 5 F.3d 874, 876 (5th Cir. 1993) ("The government contends that [the defendant] waived any jeopardy contention he may have had by acquiescing in the [FED. R. CIV. P.] 48(a) dismissal . . . . This dismissal did not bar retrial.").
187. The military-commissions statute provides that "[n]o person may, without his consent, be tried by a military commission under this chapter a second time for the same offense." 10 U.S.C. § 949h (2006). This provision is ambiguous because it might apply when the first adjudication was before a military commission, but not when the first adjudication was before an Article III court.
188. See United States v. Lara, 541 U.S. 193, 197 (2004) (explaining the separate-sovereign requirement of double-jeopardy protection).
189. See Rasul v. Myers, 563 F.3d 527, 531 (D.C. Cir. 2009) ("[T]he law of this circuit . . . holds that the Fifth Amendment does not extend to aliens or foreign entities without presence or property in the United States.").
190. But see Boumediene v. Bush, 128 S. Ct. 2229, 2277 (2008) (holding that the Suspension Clause extends to the Cuban base). Rasul, however, did not concern private litigants who had at one point been in the United States and then had been moved to Guantánamo, a fact that might change the analysis.
191. Moreover, some evidence exists to show that the government takes the position that double-jeopardy protection does not prevent a person acquitted in an Article III criminal proceeding from being retried in a court-martial. See Nicholas Schmidle, Three Trials for Murder: In the Name of Justice, Did the Military Sidestep Double Jeopardy?, NEW YORKER, Nov. 14, 2011, at 56 (recounting one such case).
192. United States v. Ghailani, 751 F. Supp. 2d 515, 520 (S.D.N.Y. 2010).
193. see also Barker v. Wingo, 407 U.S. 514, 521 (1972) (setting forth a fourpart balancing test for violations to the right to a speedy trial). In applying this analysis, the Court has endorsed delays of up to 7.5 years, suggesting that speedy-trial restraints are weak.
194. See, e.g., United States v. Loud Hawk, 474 U.S. 302, 315-17 (1986) (holding that the defendant had failed to bear the "heavy burden of showing an unreasonable delay" necessary to support his speedy-trial claim). The district court's holding creates an odd and perhaps undesirable incentive for the government to resort to CIA detention in lieu of military detention when it wishes to employ the criminal process subsequently.
195. United States v. Ghailani, 751 F. Supp. 2d 502, 504 (S.D.N.Y. 2010).
196. See, e.g., United States v. Padilla, No. 04-60001-CR, 2007 WL 1079090, at *2-6 (S.D. Fla. Apr. 9, 2007) (rejecting a detainee's motion to dismiss a federal indictment based upon the claim that he had been subjected to outrageous government conduct while in the custody of the military authorities so as to make his continued federal prosecution a violation of due process).
197. See, e.g., Al-Marri v. Pucciarelli, 534 F.3d 213, 219 (4th Cir. 2008) (en banc) (Motz, J., concurring) (developing an argument that some detentions in the United States must be accomplished by civilian, and not military, process), vacated as moot sub nom. Al-Marri v. Spagone, 129 S. Ct. 1545 (2009).
198. Compare Ex parte Milligan, 71 U.S. (4 Wall.) 2, 136 (1866) (purporting to limit military jurisdiction within the United States when civilian tribunals are open), with Ex parte Quirin, 317 U.S. 1, 48 (1942) (allowing the exercise of military jurisdiction over a citizen seized within the United States). The permissible scope of martial law is another question that has not been settled.
199. Compare Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946) (narrowly reading the authorization of wartime martial law in Hawaii), with Moyer v. Peabody, 212 U.S. 78, 85 (1909) (broadly endorsing the use of martial law).
200. For example, in the most recent merits consideration of the substantive law of domestic military detention, the en banc Fourth Circuit fragmented into seven separate opinions with no clear majority holding on the scope of appropriate detention authority. Al-Marri, 534 F.3d at 216.
201. See Boumediene v. Bush, 128 S. Ct. 2229, 2277 (2008) (declining to define the limits of permissible detention authority).
202. Rumsfeld v. Padilla, 542 U.S. 426, 450-51 (2004) (declining to rule on the merits of an enemy-combatant detention).
203. Hamdi v. Rumsfeld, 542 U.S. 507, 522 n.1 (2004) (plurality opinion) (noting that "the permissible bounds of the [enemy-combatant] category will be defined by the lower courts as subsequent cases are presented to them").
204. See 8 U.S.C. § 1189(a)(1), (d)(4) (2006) (granting the secretary of state, in consultation with the secretary of the treasury and the attorney general, authority to designate an organization an FTO upon finding that it is foreign, engages in "terrorist activity" or "terrorism," and thereby "threatens the security of United States nationals or the national security of the United States").
205. Foreign Terrorist Organizations, U.S. DEP'T OF STATE (Jan. 27, 2012), http://www.state .gov/g/ct/rls/other/des/123085.htm.
206. 8 U.S.C. § 1182(a)(3)(B)(i)(II). Section 1182(a)(3)(B) contains several other terrorismrelated grounds of deportation.
207. 10 U.S.C. §§ 948a(1), 948b(a) (Supp. IV 2010).
208. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723 (2010). For further discussion of the line separating coordinated speech from independent speech.
209. see Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 COLUM. L. REV. SIDEBAR 16 (2012), http://www.columbialawreview.org/assets/sidebar/volume/112/16_Huq.pdf.
210. Salahi v. Obama, 625 F.3d 745, 752-53 (D.C. Cir. 2010) (emphasis added) (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)).
211. accord Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011) (per curiam).
212. 8 U.S.C. § 1182(a)(3)(B)(i)(IV)-(V) (2006). At least one court of appeals, ruling on a different provision of the code, has expressed concerns about the government's use of "guilt by association" as a theory of removal. Yusupov v. Attorney Gen. of the U.S., 650 F.3d 968, 983 (3d Cir. 2011) (rejecting the government's theory as to why a noncitizen was not entitled to the withholding of removal based on his association with other suspected terrorists and citing constitutional concerns).
213. 8 U.S.C. § 1182(a)(3)(B)(i)(IX) (2006) (finding removable "the spouse or child of an alien who is inadmissible under [the terrorism-related part of the Code], if the activity causing the alien to be found inadmissible occurred within the last 5 years").
214. See infra Part IV.A-B.
215. My nomenclature is inexact insofar as "accuracy" more precisely means "accuracyrelated costs." But I prefer inexactitude here to prolixity or verbal infelicity.
216. For a relatively mild statement of this position, see Andrew C. McCarthy, Terrorism on Trial: The Trials of al Qaeda, 36 CASE W. RES. J. INT'L L. 513, 518 (2004).
217. One potential concern is that I am stacking the analytic deck, so to speak, by omitting deontological concerns. But such concerns-much like accuracy and cost-minimization concerns-can cut strongly in both directions. It is therefore unlikely that a close focus on consensus-animated goals has a skewing effect on the analysis.
218. see also ROBERT JERVIS, SYSTEM EFFECTS: COMPLEXITY IN POLITICAL AND SOCIAL LIFE 3-12 (1997) ("In a system, the chains of consequences extend over time and many areas: The effects of action are always multiple.").
219. This is not intended to be a controversial position. Our system of pretrial bail, the detention of an enemy state's soldiers in wartime, and the detention of the seriously psychologically ill are all forms of incapacitation on consequentialist grounds that have wide support in principle, even if specific applications are controversial.
220. One might counter that electoral incentives will push even bad types to minimize terrorism risk. But that is not at all clear insofar as terrorism risk has a long duration, with harms materializing long after the salient actions would need to be taken. As a consequence, a rational actor may slack off knowing that her successor will pay the political price.
221. Such review is an exercise of 28 U.S.C. § 2241 (2006), as modified by 28 U.S.C. § 2254 (2006).
222. See Felker v. Turpin, 518 U.S. 651, 662 & n.4 (1996) (noting that § 2254 "specifies the conditions under which . . . relief may be granted" when § 2241 jurisdiction is invoked by a state convict).
223. George Robert Johnson, Jr., The Split-Enforcement Model: Some Conclusions from the OSHA and MSHA Experiences, 39 ADMIN. L. REV. 315, 315-16 (1987) (identifying workplace and mine safety as areas of regulatory activity "divided between two wholly separate, independent agencies").
224. See, e.g., Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 153 (1991) ("[W]e presume . . . that Congress intended to invest interpretive power in the administrative actor in the best position to develop [historical familiarity and policymaking expertise]." ).
225. ETSI Pipeline Project v. Missouri, 484 U.S. 495, 505 (1988) (examining a conflict between the secretary of the interior and the secretary of the army).
226. see also Andrew B. Whitford, Adapting Agencies: Competition, Imitation, and Punishment in the Design of Bureaucratic Performance, in POLITICS, POLICY, AND ORGANIZATIONS: FRONTIERS IN THE SCIENTIFIC STUDY OF BUREAUCRACY 160, 162-64 (George A. Krause & Kenneth J. Meier eds., 2003) ("Agencies will respond to comparison, competition, and information revelation because of the real world implications of failure."). A related, but not identical, variation on the overlap question inquires into when private actors should be able to enforce statutory commands in addition to administrative agencies.
227. See generally Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive To Use the Legal System, 26 J. LEGAL STUD. 575 (1997) (examining the benefits and drawbacks of private enforcement).
228. Beginning in the 1960s, organizational theorists demonstrated that reserve capacity has significant positive effects on system outcomes. Early research focused on public-transit systems. One early study of redundancy demonstrated that the "loosely coupled" and "jurisdictional[ly] fragment[ed]" public-transit system of the San Francisco Bay area was substantially better able to deal with unexpected shocks, such as major accidents and natural disasters, than a more streamlined arrangement would have been. Martin Landau, On Multiorganizational Systems in Public Administration, 1 J. PUB. ADMIN. RES. & THEORY 5, 7, 10 (1991).
229. Subsequent studies focused on other complex government systems, such as the National Aeronautics and Space Administration's space-shuttle program, which is also designed to avoid extremely costly failures. E.g., Larry Heimann, Understanding the Challenger Disaster: Organizational Structure and the Design of Reliable Systems, 87 AM. POL. SCI. REV. 421 (1993).
230. The question of jurisdictional overlap also arises in the literature on federal courts' choice of law in diversity cases under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), in which fairness and forum shopping are also central concerns.
231. See generally RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 590 (6th ed. 2009) (summarizing the arguments). Extended treatment of the analogy is inapt since the disaggregated strategic choices of multiple plaintiffs would be modeled differently from the actions of the unitary government actor at issue here.
232. For example, a federal court must determine that a criminal defendant's confession was voluntary before admitting it. 18 U.S.C. § 3501 (2006). By contrast, the military commissions are instructed not to admit confessions elicited by torture or cruel, inhuman, or degrading treatment. 10 U.S.C. § 948r(a) (Supp. IV 2010).
233. For a similar use of the same term in the context of arbitrage at the international level between different jurisdictions, see Eugene Kontorovich, "A Guantánamo on the Sea": The Difficulty of Prosecuting Pirates and Terrorists, 98 CALIF. L. REV. 243, 269 (2010).
234. See John B. Bellinger III & Vijay M. Padmanabhan, Detention Operation in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 AM. J. INT'L L. 201, 212 (2011) ("States may capture nonstate fighters on or adjacent to the battlefield in circumstances where evidence collection either cannot occur or cannot be a priority. Sources of evidence may also include intelligence sources that cannot be subjected to the rigors of confrontation without compromising sources and methods.").
235. "Moral hazard is the . . . tendency of an insured to underallocate to loss prevention after purchasing insurance." KENNETH S. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY 14 (1986).
236. By analogy, the obligation to provide disaster relief may not be needed to induce optimal precautions against terrorism because such "precautions are already encouraged by political self-interest and, no doubt, by a deeply held commitment to the safety of the country." Saul Levmore & Kyle D. Logue, Insuring Against Terrorism-And Crime, 102 MICH. L. REV. 268, 311 (2003).
237. The availability of pretextual charges may also have a buffering effect within the criminal-justice system. That is, prosecutors can supply their own insurance by charging suspects with ancillary offenses.
238. For situations in which multiple venues have divergent error rates-for example, of 0.1, 0.25, and 0.5-adding unrestrained sequential overlap among the three venues would not necessarily reduce error rates compared to those yielded by exclusive use of the most accurate forum.
239. See Advanced Search, GLOBAL TERRORISM DATABASE, http://www.start.umd.edu/gtd/search (open "Casualties" tab.
240. select Casualty Type: "Fatalities Only" and Number of Casualties: "101+".
241. follow "Search" hyperlink).
242. Jonathan Masur, Patent Inflation, 121 YALE L.J. 470, 470 (2011).
243. Further, my analysis focuses on two separate forums, not two venues linked by a hierarchical appeals structure.
244. See, e.g., Kevin E. Lunday & Harvey Rishikof, Due Process Is a Strategic Choice: Legitimacy and the Establishment of an Article III National Security Court, 39 CAL. W. INT'L L.J. 87, 100-04 (2008) (proposing that only a national-security court can provide the optimal mix of legitimacy, procedural rigor, and specialization).
245. Delay cannot be explained by detainees' challenges.
246. Cf. Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy, 70 GEO. WASH. L. REV. 649, 720-25 (2002) (describing Revolutionary War usage of military commissions).
247. To be sure, no innovation was needed to expose al Qaeda members to military criminal process even in 2001. Cf. 10 U.S.C. § 818 (2000) (vesting courts-martial with general jurisdiction over any person amenable to trial under the laws of war).
248. Deborah Pearlstein, Four Issues of Concern, HUMAN RIGHTS FIRST (Aug. 23, 2004), http://www.humanrightsfirst.org/2004/08/23/four-issues-of-concern.
249. See, e.g., Legal Issues Surrounding the Military Commissions System: Hearing Before the Subcomm. on the Constitution, Civil Rights & Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 16-18 (2009) (statement of Lieutenant Colonel Darrel J. Vandeveld) (recounting his experience as "a prosecutor in the Office of Military Commissions in Guantanamo Bay from May 2007 through December 2008" who underwent a "profound change of heart and mind when [he] realized through firsthand observation and through [his] own actions that what [he] was seeing at Guantanamo was not at all consistent with our core values of justice and due process of law").
250. See United States v. Hamdan, No. 04-0004, slip. op. at 2 (Mil. Comm'n June 4, 2007) ("The 2004 CSRT determination that the accused is an 'enemy combatant' was made for the purposes of determining whether or not he was properly detained, and not for the purpose of determining whether he was subject to trial by military commission." (quoting Military Commissions Act of 2006, Pub. L. No. 109-366, sec. 3, § 948d(a), 120 Stat. 2600, 2603)).
251. United States v. Khadr, No. CMCR 07-001, slip op. at 19-25 (Ct. Mil. Comm'n Rev. Sept. 24, 2007), available at http://www.scotusblog.com/archives/CMCR%20ruling%209-24-07.pdf.
252. For an exemplary account of military commissions published in these pages, see David J.R. Frakt, Mohammed Jawad and the Military Commissions of Guantánamo, 60 DUKE L.J. 1367 (2011).
253. More generally, none of the defendants before military commissions so far, perhaps with the exception of Ali Hamza Ahmad Suliman al-Bahlul, have been alleged to have had substantial authority within al Qaeda. See The Guantanamo Trials, HUMAN RIGHTS WATCH, http://www.hrw.org/features/guantanamo (last visited Mar. 19, 2012) (listing defendants who have appeared before the military commission and providing case summaries).
254. See, e.g., GLENN SULMASY, THE NATIONAL SECURITY COURT SYSTEM: A NATURAL EVOLUTION OF JUSTICE IN AN AGE OF TERROR (2009) (arguing for the creation of a court that balances national-security concerns and due-process rights).
255. Stephen J. Schulhofer, Checks and Balances in Wartime: American, British, and Israeli Experiences, 102 MICH. L. REV. 1906 (2004).
256. For an argument that even the November 2001 commissions possessed such legitimacy, see Curtis A. Bradley & Jack A. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 2D 249 (2002).
257. Glenn M. Sulmasy & Andrea K. Logman, A Hybrid Court for a Hybrid War, 42 CASE W. RES. J. INT'L L. 299, 319 (2009).
258. Criminal-law scholars have expressed a concern that prosecutors will evade criminalprocedure rules by turning to the civil law or broadening the substantive scope of the criminal law. E.g.,William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 1, 17-18 (1996). The evidence compiled in Part I suggests both dynamics are discernible in the terrorist-detention domain.
259. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (noting that noncriminal detention is permissible only "in certain special and 'narrow' nonpunitive 'circumstances'" (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992))).
260. see also Foucha, 504 U.S. at 83 (invalidating a Louisiana statute that authorized civil commitment on a finding of dangerousness without requiring a finding of mental illness).
261. See, e.g., Daniel Moeckli, The US Supreme Court's 'Enemy Combatant' Decisions: A 'Major Victory for the Rule of Law'?, 10 J. CONFLICT & SECURITY L. 75, 79 (2005) (arguing that "the designation as 'enemy combatants' seems to have been mainly designed to circumvent the procedural safeguards applicable in normal criminal procedures").
262. See, e.g., Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C. L. REV. 1557, 1581 (2008) (expressing concern about circumvention risk through state enforcement of federal immigration law).
263. Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).
264. For example, see the fractured opinions in Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc), vacated as moot sub nom. Al-Marri v. Spagone, 129 S. Ct. 1545 (2009).
265. To be sure, it is also possible that the public will feel more secure because they believe that the only persons susceptible to the new forms of adjudication are minorities or noncitizens.
266. Cf. Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1210-11 (1967) (introducing the idea of demoralization costs with respect to owners when property is condemned and with respect to others who believe as a consequence that their property is less secure).
267. See generally Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865 (2007) (developing the importance of credibility for an executive otherwise unconstrained by law).
268. Padilla v. Hanft, 432 F.3d 582, 585 (4th Cir. 2005).
269. See generally MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CIRCUIT COURT 199-243 (1979) (developing this argument with respect to the ordinary criminal process).
270. See 28 C.F.R. § 501.3 (2011) (authorizing the attorney general to require "special administrative measures" that limit human contact when it is "reasonably necessary to protect persons against the risk of death or serious bodily injury").
271. see also United States v. Hashmi, 621 F. Supp. 2d 76, 79-80 (S.D.N.Y. 2008) (describing the use of special administrative measures in a terrorism case).
272. See, e.g., Eric Lichtblau, 1996 Statute Becomes the Justice Department's Antiterror Weapon of Choice, N.Y. TIMES, Apr. 6, 2003, at B15 ("Mr. Brown said his client had decided to plead guilty after prosecutors suggested that Mr. Mosed [one of the Lackawanna suspects] could be declared an enemy combatant and be held indefinitely without a lawyer, or be charged with treason and face execution.").
273. Similarly, the accuracy and start-up costs identified in Parts III.A and III.B are likely to have concave cost curves.
274. For a good introduction to agency problems, see generally Eric A. Posner, Agency Models in Legal Scholarship, in CHICAGO LECTURES IN LAW AND ECONOMICS 225 (Eric A. Posner ed., 2000).
275. See, e.g., Gary J. Miller, The Political Evolution of Principal-Agent Models, 8 ANN. REV. POL. SCI. 203, 207, 209-10 (2005) (noting agency cost problems specifically in the context of presidential power and congressional oversight).
276. Judicial review of constitutional matters is, of course, another story.
277. See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 40 (1993) ("[T]he conditions of judicial employment enable and induce judges to vote their personal convictions and policy preferences-or in a word their values.").
278. This is known as a "team production" problem. Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 AM. ECON. REV. 777, 779-83 (1972).
279. William A. Niskanen, Bureaucrats and Politicians, 18 J.L. & ECON. 617, 636-37 (1975).
280. This is not true of all federal judges. See, e.g., Esmail v. Obama, 639 F.3d 1075, 1077- 78 (D.C. Cir. 2011) (Silberman, J., concurring) (expressing doubts as to whether federal judges should evaluate terrorism risk in individual cases). If more judges had Judge Silberman's attitude, redundancy might have the pernicious effect of enabling shirking.
281. This may be particularly true of immigration judges. See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005) (listing twelve examples in which the Seventh Circuit criticized the decisions of immigration judges).
282. United States v. Abu Ali, 528 F.3d 210, 221 (4th Cir. 2008).
283. See ROBERT TIMOTHY REAGAN, FED. JUDICIAL CTR., NATIONAL SECURITY CASE STUDIES: SPECIAL CASE-MANAGEMENT CHALLENGES, at vii (2010), available at http://www.fjc .gov/public/pdf.nsf/lookup/ts100222.pdf/$file/ts100222.pdf (indexing the procedural issues addressed in the cases studied).
284. Abu Ali, 528 F.3d at 228-30 & n.5.
285. see also United States v. Marzook, 435 F. Supp. 2d 708, 749 (N.D. Ill. 2006) (endorsing a streamlined suppression hearing in which the defendant's ability to question foreign intelligence officials was curtailed).
286. U.S. CONST. amend. VI ("[T]he accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .").
287. Abu Ali, 528 F.3d at 242.
288. See, e.g., United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003).
289. Accord Marzook, 435 F. Supp. 2d at 749.
290. See U.S. CONST. amend. VI ("[T]he accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . .").
291. United States v. Moussaoui, 365 F.3d 292, 312-17 (4th Cir.) (holding that the defendant's compulsory-process-right could be satisfied by his obtaining summaries of interrogations from the government), amended by 382 F.3d 453 (4th Cir. 2004).
292. Cf. Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 HARV. J. ON LEGIS. 1, 77-78 (2005) (drawing proposals for statutory reform from Justice Department testimony).
293. Even after a decade of expansions in the federal criminal law of counterterrorism, such gaps still exist. Eric Schmitt & Mark Mazzetti, Obama Adviser Outlines Plans To Defeat al Qaeda, N.Y. TIMES, June 30, 2011, at A12 (describing Vice Admiral William H. McRaven's statements concerning a class of terrorism suspects who are detained, initially held on Navy vessels while the Justice Department identifies any authority to detain, and, in some cases, released for absence of such authority).
294. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6602, 118 Stat. 3638, 3761 (codified at 18 U.S.C. § 2339D (2006)) (establishing a crime for receiving "military-type training" from a "designated terrorist organization").
295. see also Aiding Terrorists: An Examination of the Material Support Statute: Hearing Before S. Comm. on the Judiciary, 108th Cong. 12 (2004) (statement of Christopher A. Wray, Assistant Att'y Gen., Criminal Division, Department of Justice) (stating that "training to commit terror under certain circumstances may not be a crime, which just stands logic on its head," and urging a change in the law).
296. E.g., NATIONAL STRATEGY FOR COUNTERTERRORISM (2011), available at http://www.whitehouse.gov/sites/default/files/counterterrorism_strategy.pdf.
297. Consider, for example, the debates about estimates of Iran's nuclear capabilities.
298. Cf. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1145 (1990) ("If Congress observes that an agency has a particularly poor litigating record in the federal courts, it may take corrective action . . . .").
299. Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 HARV. L. REV. 1422, 1464 (2011).
300. see also Krishna K. Ladha, The Condorcet Jury Theorem, Free Speech, and Correlated Votes, 36 AM. J. POL. SCI. 617, 625-30 (1992) (showing that a group of decisionmakers with a shared school of thought may have a lower probability of making a correct decision than any one decisionmaker alone).
301. See Sean Gailmard & John W. Patty, Slackers and Zealots: Civil Service, Policy Discretion, and Bureaucratic Expertise, 51 AM. J. POL. SCI. 873, 874, 886 (2007) (arguing that agencies will be staffed by individuals with outlying policy preferences in comparison to those held by members of Congress).
302. See Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 ADMIN. L. REV. 753, 771-75 (2006) ("[T]he costly signaling theory of hard look judicial review postulates that when courts scrutinize agency records, they are drawing inferences about the costs the agency incurred in generating the record. These cost estimates are useful to the court because they indicate how valuable the regulation is to the agency.").
303. There are many contexts in which Congress expressly mandates the production of data about the rate at which agencies employ certain tools. See, e.g., Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, sec. 101, § 707, 122 Stat. 2436, 2457- 58 (codified at 50 U.S.C. § 1881f (Supp. III 2010)) (mandating biannual reports to Congress). The animating logic of such reporting requirements is that Congress needs to have data about different statutory tools' being employed to make judgments about how to tailor government powers in the future. My argument on detention is that data about the comparative use of different forums may provide Congress with information about the kinds of persons being detained and the effort being expended by agencies on such persons. This information may allow Congress, for example, to infer that it needs to impose more or less onerous regulations on the agency's front-end interdiction powers.
304. See, e.g., Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1218 (2007) ("In our view, the executive should [with respect to the war on terror and the AUMF] usually be entitled to interpret genuinely ambiguous provisions as it sees fit, subject to the qualifications that its interpretations must be reasonable and that Congress must specifically authorize intrusions on constitutionally sensitive interests.".
305. ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL 9 (2007).
306. TIM WEINER, LEGACY OF ASHES: THE HISTORY OF THE CIA 478 (2007).
307. See Daryl Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 370-71 (2000) (expressing skepticism about the incentive effects of government tort judgments).
308. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009) (dismissing for failure to state a claim a damages action by a former immigration detainee against two high-level federal officials).
309. Arar v. Ashcroft, 585 F.3d 559, 563 (2d Cir. 2009) (en banc) (dismissing a suit because of the insufficiency of the allegations and the absence of a Bivens remedy).
310. El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007) (affirming the district court's dismissal based on the "state secrets" doctrine).
311. This is another example of the general problem that arises when agents are delegated multiple tasks and have preferences as between those tasks that are inconsistent with the preferences of the principal. See generally Bengt Holmstrom & Paul Milgrom, Multitask Principal-Agent Analyses: Incentive Contracts, Asset Ownership, and Job Design, 7 J.L. ECON. & ORG. (SPECIAL ISSUE) 24 (1991) (analyzing an agent's decisionmaking process when the agent has more than one task to perform).
312. Jonathan Simon, Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security, in WHEN LAW FAILS: MAKING SENSE OF MISCARRIAGES OF JUSTICE 115, 117 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009) ("[T]he culture of investigation inside American policing has become reliant on forced confessions and other forms of 'junk evidence' as a by-product of its long, dirty war on drugs." (footnote omitted)).
313. John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. 1037, 1066 (2009).
314. George J. Stigler, The Optimum Enforcement of Laws, 78 J. POL. ECON. 526, 527 (1970).
315. see also Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232, 1245 (1985) ("[R]aising the sanction with the expected harmfulness of acts gives parties who are not deterred incentives to do less harm.").
316. 18 U.S.C. § 2339B(a)(1) (2006).
317. This holds constant the likelihood of interdiction.
318. Al Qaeda in particular has suffered severe "[r]ecruitment difficulties" since 9/11. CHARLES KURZMAN, THE MISSING MARTYRS: WHY THERE ARE SO FEW MUSLIM TERRORISTS 11-12 (2011). Sympathy for the organization's goals appears to be much more widespread than willingness to act on its behalf.
319. See Monica Davey, Would-Be Plane Bomber Pleads Guilty, Ending Trial, N.Y. TIMES, Oct. 13, 2011, at A17 (recounting a plan by a terrorism defendant made in the midst of trial, seemingly on ideological and not consequentialist grounds).
320. See Aziz Z. Huq, The Signaling Function of Religious Speech in Domestic Counterterrorism, 89 TEX. L. REV. 833, 879 n.243 (2011).
321. To reach an accurate assessment of how eliminating redundancy influences outcomes, it would be necessary to isolate that change from other effects in order to avoid confounding results. One would have to alter redundancy without altering the median quantum of process used in the system. One of the proposals discussed below-recourse to Article III courts only- roughly has this property. But the other-recourse to military forums only-does not. That alternative would lead on average to a drop in the procedural rigor of hearings. Even controlling for the change in median procedural rigor, however, I argue that the latter change still would be undesirable.
322. see also Neil A. Lewis, Try Detainees or Free Them, 3 Senators Urge, N.Y. TIMES, Dec. 13, 2003, at A14 ("They may not have any rights under the Geneva Conventions as far as I'm concerned, . . . but they have rights under various human rights declarations. And one of them is the right not to be detained indefinitely." (quoting Senator John McCain) (internal quotation marks omitted)).
323. See Michigan v. Bryant, 131 S. Ct. 1143, 1157-60 (2011) (interpreting expansively the emergency exception to the Confrontation Clause).
324. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 190-91 (2004) (holding that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment).
325. Congress has in the past made jurisdictional changes respecting detainees' access to federal court. See, e.g., Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, § 1005(e), 119 Stat. 2739, 2741-43 (codified as amended at 10 U.S.C. § 801 and 28 U.S.C. § 2241(e) (2006)) (stripping statutory habeas jurisdiction in challenges of Guantánamo detentions). The proposals discussed here would limit the choice set of the government and not the choice set of the detainee.
326. Detainee Security Act of 2011, H.R. 968, 112th Cong. (2011).
327. Representative McKeon also introduced the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010, H.R. 4892, 111th Cong. (2010).
328. Section 4 of that bill would have barred the use of any "funds appropriated or otherwise made available to the Department of Justice" to prosecute a person falling into a category roughly homologous to enemy combatant.
329. Daniel Halper, Rep. Buck McKeon's Foreign Policy Address, WKLY. STANDARD BLOG (Nov. 15, 2010, 2:00 PM), http://www.weeklystandard.com/blogs/rep-buck-mckeons-foreignpolicy-address_516881.html.
330. 157 CONG. REC. S6729-30 (daily ed. Oct. 19, 2011) (amendment text).
331. see also 157 CONG. REC. S6845-46 (daily ed. Oct. 20, 2011) (vote count). The Ayotte amendment is poorly drafted even if one agrees with its policy goals. For example, its reference to "attack[s] . . . against the United States," 157 CONG. REC. S6730 (daily ed. Oct. 19, 2011), could be read to reach any assault on a federal official, whether a postal worker or an FBI agent. Senator Ayotte has defended her proposal on the ground that "informing an enemy combatant of his or her 'right to remain silent' is contrary to the essential goal of obtaining critical intelligence necessary to finding other terrorists and preventing future attacks."
332. Kelly Ayotte, Opinion, Job 1: Stopping Future Terror Attacks, CONCORD MONITOR, Oct. 27, 2011, http://www.concordmonitor.com/article/288349/job-1-stopping-future-terror-attacks.
333. It is hard to see how an objection to the rule of Miranda v. Arizona, 384 U.S. 436 (1966), which operates before a trial occurs and which has a public-safety exception, conduces to a categorical objection to Article III trials. Senator Ayotte's justifications for her proposal also entirely fail to address why it is desirable to eliminate optionality from the existing system.
334. See National Defense Authorization Act for Fiscal Year 2012 (NDAA 2012), Pub. L. No. 112-81, § 1022(a)(2) (2011), PL 112-81 (Westlaw) (defining the scope of application as reaching anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and who has also "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners"). Section 1022(a)(2) thus describes a subset of the persons who can be detained under the detention authority listed in section 1021(b), which is drafted in the disjunctive and not the conjunctive.
335. This definition is ambiguous because it is not clear what the relevant unit of analysis is for conflicts. For example, should one look at the Afghan theater as a single conflict, as the Supreme Court did when considering the lawful duration of a battlefield detention? Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion) (suggesting that Hamdi could be held only until the end of the Afghan conflict in which he had been seized). Or should one consider all U.S.-al Qaeda interactions as a single conflict? The statute is not clear on this point.
336. NDAA 2012 § 1021(c)(1)-(4).
337. NDAA 2012 § 1021(c)(3).
338. No argument was made during the legislative debates over the 2012 NDAA to the effect that government choices to use Article III should be made marginally more costly through the imposition of a layer of bureaucracy. Nor is it easy to discern any colorable policy justification for section 1022's effect along these lines.
339. NDAA 2012 § 1022(d).
340. For a careful analysis of evidence of recidivism by enemy combatants suggesting that the worry is somewhat overstated, see Peter Bergen & Katherine Tiedemann, Guantanamo: Who Really 'Returned to the Battlefield?,' NEW AM. FOUND. (July 20, 2009), http://counterterrorism.newamerica.net/publications/policy/guantanamo_who_really_returned_battle field (discussing recidivism rates among enemy combatants who have been detained). It is also important to observe that what is commonly called recidivism may be nothing of the kind. Instead, it may be evidence of what might be termed a criminogenic effect from enemycombatant detention. In other words, the fact that those who are erroneously detained at first are exposed to radicalizing influences within a detention facility and then released.
341. See 10 U.S.C. § 950t(24) (Supp. IV 2010) (defining the "material support" offense).
342. See Hamdan v. Rumsfeld, 548 U.S. 557, 611 (2006) (plurality opinion) (suggesting that conspiracy offenses are not violations of the laws of war).
343. See United States v. Hamdan, No. CMCR 09-002, 2011 WL 2923945, at *44 (Ct. Mil. Comm'n Rev. June 24, 2011) (holding that material support was a violation of the laws of war prior to the enactment of military-commissions legislation in 2009).
344. Accord United States v. Al Bahlul, No. CMCR 09-001, 2011 WL 4916373, at *29-53 (Ct. Mil. Comm'n Rev. Sept. 9, 2011). These opinions rest their conclusions largely on evidence of international treaties that urge states to enact municipal criminal statutes and on various domestic criminal laws. It is not clear that independent evidence of the status of material support under international law is strong, or even tenable.
345. A more cynical view may be that it is precisely in order to impose moral and psychological pressure on judges to find military commissions capable of prosecuting materialsupport offenses that proponents of the military-only route are now pressing their case.
346. I am grateful to William Hubbard for pressing me on this distinction.
347. Such methods obviously may raise normative concerns. Without detracting from those concerns, I mean to set them aside for the purpose of this analysis.
348. A study of British counterterrorism policies in Northern Ireland found that of six highvisibility initiatives, one had had an observable deterrent effect, whereas five had had no discernible deterrent effect. Two others had had no statistically significant impact, whereas three of the intrusive policies had been associated with significant increases in violence. Gary LaFree, Laura Dugan & Raven Korte, The Impact of British Counterterrorist Strategies on Political Violence in Northern Ireland: Comparing Deterrence and Backlash Models, 47 CRIMINOLOGY 17, 25-35 (2009).
349. Similar effects have been identified in the aftermath of the 2003 U.S. invasion of Iraq. See Ronald Fischer, Charles Harb, Sarah Al-Sarraf & Omar Nashabe, Support for Resistance Among Iraqi Students: An Exploratory Study, 30 BASIC & APPLIED SOC. PSYCHOL. 167, 173 (2008) ("The data presented here suggest that support for violence is strongly influenced by a national struggle against a foreign occupation force.").
350. See Jack Goldsmith, The Cheney Fallacy, NEW REPUBLIC (May 18, 2009, 12:00 AM), http://www.tnr.com/article/politics/the-cheney-fallacy ("The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit.").
351. For an endorsement of the use of criminal process from a former official in the Bush administration, see Charles D. Stimson, What We've Learned About Terror Trials from the Underwear Bomber, FOXNEWS.COM (Oct 12, 2011), http://www.foxnews.com/opinion/2011/10/12/weve-learned-about-terror-trials-from-underwear-bomber.
352. See, e.g., Exec. Order No. 13,492, 3 C.F.R. 203, 205-06 (2010) (requiring the secretary of defense and others to participate in a detainee review process to determine, among other things, "whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release").
353. David S. Kris, Law Enforcement as a Counterterrorism Tool, 5 J. NAT'L SECURITY L. & POL'Y 1, 78 (2011).
354. see also Jeh C. Johnson, Gen. Counsel, U.S. Dep't of Def., Speech to the Heritage Foundation 3-5 (Oct. 18, 2011), available at http://www.lawfareblog.com/wp-content/uploads/2011/10/20111018_Jeh-Johnson-Heritage-Speech.pdf (arguing that "[t]he military should not, and cannot be, the only answer [to al Qaeda]" and defending the use of Article III courts).
355. Humanitarian Law Project v. Holder, 130 S. Ct. 2705 (2010).