Last month’s controversy over online-piracy legislation and the previous month’s (interestingly) smaller controversy over the government’s authority to detain American citizens indefinitely bear two striking similarities:
- Each is a reaction to the increasingly difficult time centralized authorities have in monitoring unwanted activities that constitute fundamental security and economic threats.
- Each proposal recommended an increase in centralized authority as a solution.
I would draw attention instead to the following facts:
- The increased monitoring costs centralized authorities face are the direct result of the growing technical power of the individual (to produce creative works, to share others’ creative works, and yes, to destroy).
- These technical powers are, alas, intimately linked and cannot be fundamentally undermined without strongly undermining the basis of our economy.
Therefore, I would recommend the following approach as we move forward:
- We must accept an increased level of risk from individual actors if we are efficiently to harness the new technical powers that we have at our disposal.
- The alternative is to gradually give up freedoms to which we have become accustomed and which we cherish.
- Distributing information and authority more effectively will be the only sustainable way to contend with increased risk while avoiding a loss of freedom. The purpose would be to increase network resiliency while preserving the technical power and personal freedom of the individual.
I do not claim to have the correct methods for accomplishing all of these recommendations. I do, however, believe that the challenge to solving these issues is fundamental and therefore take the liberty of sharing my unrefined conception.
the government’s authority to detain American citizens indefinitely
Preventive detention of individuals (including citizens) outside the normal criminal-justice process has happened before in this country. In your view, were these previous instances also the result of “the growing technical power of the individual”? Or do you view Sec. 1021 of NDAA12 as a re-purposing of an old tool for a new problem?
Yes, this is a good question, MI.
My viewpoint is shaped by the fact that the policy is indefinite and general (not just focused on rebelling states or an unfairly treated ethnic group). In that sense, the reaction, as far as the US goes, is new, and not a re-purposing of an old tool.
My argument, furthermore, was not that governments take away rights because of the technical powers of individuals, per se, but that the increased monitoring costs governments face today are leading to this particular restrictive action.
I’d like to hear more about your thoughts and would welcome the opportunity to sharpen/modify my argument, where necessary.
the policy is indefinite and general (not just focused on rebelling states or an unfairly treated ethnic group).
1. Sec. 1021 of NDAA12 isn’t “general”; per subsection (b) thereof, it’s limited to the perpetrators of 9/11, those who harbored them, and those who are “a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners . . . .” As I’ve previously noted (*), the applicability of Sec. 1021 – like that of the AUMF – to US citizens outside an active battlefield remains unsettled as a matter of law.
2. As for “indefinite”: Sec. 1021(c)(1) only authorizes “Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Hence, whether or not such detention actually ends up being “indefinite” depends on how the war against AQ & its allies turns out. Only if that war lasts forever would this be true.
(*) aleksandreia.com/2011/11/30/reflections-on-ndaa12-§-1031/
Do we have any idea when, if ever, the War on Terror [sic] will end? We are still under several states of emergency declared at various times beginning with WWII (and possibly the Spanish-American War.) The physical hostilities of a war may not last forever, but its legal sequelae probably will.
Do we have any idea when, if ever, the War on Terror [sic] will end?
Not sure; but then, the end of many wars is “definite” only in hindsight.
We are still under several states of emergency declared at various times beginning with WWII (and possibly the Spanish-American War.)
IIRC, as of 9/14/1978, all powers under these emergencies were terminated by 50 USC 1601.
The physical hostilities of a war may not last forever, but its legal sequelae probably will.
Perhaps, but ISTM that extending “war on terror”-related detentions beyond the end of “physical hostilities” against AQ et al would require another statute besides the NDAA (or perhaps a sufficiently creative set of judges). As I read Sec. 1021, if those “hostilities” do end, then so also does the authority for detention.
1) The fact that AQ and the Taliban do not have definite addresses, as had Germany, etc., makes it exceedingly difficult to ever declare the organizations ‘dead.’
2) The same fact makes it difficult, in fact impossible, to ever argue that ‘the threat has passed.’
3) Finally, the lack of a definite address/army also makes the definition of membership/support very vague and, yes, general.
Indefinite just means “lasting for an unknown length of time” or “vague.” It does not mean “lasting forever.”
Of course, it would be fair to argue that other such extra-judicial procedures have been enacted for “indefinite” (not “infinite”!) periods of time. And, yes, that would mitigate, to an extent, the force of the argument that I made in point #2, above.
Thanks for your careful work.
the lack of a definite address/army also makes the definition of membership/support very vague and, yes, general.
Defining membership & support in the context of unlawful combatants is indeed more difficult than with lawful ones. This difficulty, however, hasn’t stopped the DC Circuit from making headway re. definitions in the last three years of detainee habeas cases. See “The Emerging Law of Detention 2.0″ for details.
Indefinite just means “lasting for an unknown length of time” or “vague.” It does not mean “lasting forever.”
Actually, I’m inclined to agree w/ this definition. I couldn’t be sure which way you were using “indefinite,” so I chose the one less favorable to my argument.
it would be fair to argue that other such extra-judicial procedures have been enacted for “indefinite” (not “infinite”!) periods of time.
Indeed.
Thanks for the reference to the DC Circuit court work.
(Not) to quibble, but I actually think that using a weaker definition of “indefinite” was more favorable to my argument. You created a straw man with your original argument on that score.
I wasn’t aiming to create a straw man. My argument was (and is) that Sec. 1021 is analogous to past precedent. If detention lasted forever, then it would indeed be unprecedented. If its endpoint was merely unclear at the present time, then Sec. 1021 wasn’t unprecedented; it was analogous to POW detentions in prior wars, when those detentions were viewed from an intra-war standpoint by an observer who was unclear on how much longer the conflict might last.
To clarify (in brief):
I think that we are discussing at least three issues here.
1) Whether current provisions are ‘indefinite’ and ‘general.’
2) Whether such provisions are distinct from other provisions enacted in earlier US(?) history.
3) What has motivated the enactment of current provisions.
As far as (1) goes, I would still hold that recent provisions are indefinite in the sense of having no clear end-point and general, in the sense of not applying to a clearly definable group (I think that you, MI, have agreed to these two points.). In fact, the ‘indefiniteness’ is, in some sense, dependent on the generality of the provision. (How can the endpoint of hostilities against an amorphous group be properly defined?)
The argument in the final sentence above is, further, what compels me to argue that these provisions are distinct from similar past provisions (see issue #2).
Finally, I return to my original point (which referenced issue #3), which is that, the application of provisions previously focused on events surrounding inter-nation-state warfare to a new context is motivated by changes in the technical power of the individual. Other terror enacted during US history, when not backed by a nation-state/etc. was not nearly as threatening as such terror is today.
1. Regarding “indefinite”: At present, the endpoint of the war authorized by the 9/11 AUMF is unclear, and hence “indefinite”. It follows that detentions authorized by that statute, & Sec. 1021 of NDAA12, are likewise “indefinite”. However, once upon a time the Civil War, WWII, etc., were also “indefinite,” in the sense that their endpoints couldn’t be foreseen either. (With the gift of hindsight, of course we now know the endpoints of those wars; but I’m not sure those endpoints were evident to the participants while those wars were actually going on.) Extrajudicial detentions of enemy soldiers held as POWs were likewise “indefinite”, since these POWs – like the detainees of today – could be held until the end of hostilities. If the durations of today’s detentions are potentially much longer than in previous wars, it’s not because Sec. 1021′s duration provision varies from that of POW detention. On the contrary, it’s because Sec. 1021’s provision is the _same_ as that used for POWs in past conventional wars – i.e., “until the end of hostilities”; and because the war against AQ et al may well last much longer than previous wars.
2. If you define “general” as meaning “not applying to a clearly definable group”, then whether or not Sec. 1021 is “general” depends on how clearly the terms “associated forces”, “part of” (i.e., member), and “substantially supported” are defined in the current habeas jurisprudence. I’m no expert on that area, but my impression is that some standards for membership and “associated force” do exist, since the courts have mainly relied on “membership” to determine detainability, and have deemed organizations besides AQ & the Taliban to be “associated forces”. The definition for “substantial support”, apparently, remains largely unsettled; but this doesn’t necessarily make the term a blank check, since cases arising under it would probably be adjudicated with reference to analogues from the laws of war (*).
3. As for precedent: Detention of members of the armed forces of a belligerent and its allies for the duration of hostilities has clear precedent in conventional warfare (e.g., US detentions of Axis POWs in WWII). Not sure about “substantial support”; though if this term is defined with reference to the conventional laws of war, as Lederman & Vladeck suggest, then some precedent exists under provisions of the Third & Fourth Geneva Conventions (which permit detention of certain civilians not belonging to armed forces). My impression is that Sec. 1021 isn’t distinct from past practice; rather, it’s an application of some of those practices to a novel area (i.e., armed conflict against non-state organizations outside US borders).
4. As for motivation: you may well be correct on this score. If small groups of individuals can inflict levels of damage that, in previous years, could only be inflicted by nation-states in conventional warfare, then some may well deem it necessary to use the same sorts of “war powers” when opposing such groups.
(*) See http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/.
I will continue mulling this over and respond at a later date. Thanks, again, for your interest and responses.