Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2008 Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists Matthew C. Waxman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Military, War, and Peace Commons Recommended Citation Matthew C. Waxman, Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists, 108 COLUM. L. REV. 1365 (2008). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/222 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. DETENTION AS TARGETING: STANDARDS OF CERTAINTY AND DETENTION OF SUSPECTED TERRORISTS Matthew C. Waxman * To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishingsuspected terroristsfrom nonterrorists? This Article shows that the law of war can and should be interpretedor supplemented to accountfor the exceptional aspects of an indef- inite conflict against a transnationalterrorist organization by analogizing detention to military targeting and extrapolatingfrom targeting rules. A targeting approach to the detention standard-of-certaintyquestion provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonablecare standardfor dealing with the prac- tical and moral problems of protecting innocent civiliansfrom injury amid clouds of doubt and misinformation, though the applicationof this standard in the detention context must account for differences such as a temporal di- mension, available procedural mechanisms, and political and strategic con- text. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recom- mends several ways to remedy them, including through an escalatingstan- dard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency. INTRODUCTION .................................................. 1366 I. WHAT IS THE APPROPRIATE "STANDARD OF CERTAINTY" FOR DETAINING SUSPECTED TERRORISTS? .......................... 1369 A. Two Paradigms: Criminal Law Versus the Law of W ar ................................................. 1372 B. A Gap in the Law in Need of Filling ................. 1376 II. DETENTION AS A FoRm oF TARGETING ........................ 1385 A. Operating in Clouds of Doubt: Targeting Law in W arfare .............................................. 1385 B. Targeting Law's "Reasonable Care" Standard ......... 1387 1. Military Effectiveness ............................. 1390 2. M oral Culpability ................................ 1391 3. The Adversary's Incentives ....................... 1392 C. Detention as a Form of Targeting .................... 1394 * Associate Professor, Columbia Law School; Member of the Hoover Institution Task Force on National Security and Law; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations. From August 2004 through 2005 the author served as Deputy Assistant Secretary of Defense for Detainee Affairs. The opinions and characterizations in this Article are those of the author and do not represent official positions of the United States government except where expressly noted. 1365 1366 COLUMBIA LAW REVIEW [Vol. 108:1365 1. Military Effectiveness Arguments ................. 1396 2. M oral Argum ents ................................ 1399 3. Incentives Arguments ............................ 1401 III. STANDARDS OF CERTAINTY FOR DETENTIONS: REFINING THE TARGETING APPROACH .................................... 1402 A. The Temporal Dimension of Detention .............. 1406 1. Detention Injuries over Time .................... 1406 2. Demand an Escalating Standard of Certainty ..... 1408 B. Alternative Adjudication Mechanisms ................. 1413 1. Procedural Versus Substantive Standards .......... 1413 2. The Need for Comparative Analysis .............. 1414 3. The Weakness of Hamdi and Boumediene .......... 1418 C. Enforcement Pressures and Incentive Structures ...... 1420 1. The Strategic and Political Context ............... 1421 2. The Logic of Transparency ....................... 1424 CONCLUSION ...................................................... 1429 INTRODUCTION Consider a January 2006 incident in which the CIA allegedly tried to kill with a missile al Qaida deputy Ayman Zawahiri and other suspected al Qaida members believed to be meeting at a house in a remote Pakistani village. According to many reports, Zawahiri was not actually present, and among the eighteen or so people killed were probably some half- dozen Islamic extremists as well as perhaps a dozen civilians.' What if instead of hitting the house with a missile, the U.S. military had good reason to suspect that most, though perhaps not all, people staying in the house were al Qaida terrorists, and, even worrying that some of them might be guiltless, it sent them all to Guantanamo? Putting aside the issue of whether the missile strike itself is a legal option, somehow, curi- ously, the predictable civilian deaths of the missile attack seem a tragic yet natural consequence of military force while the hypothetical detention of everyone present-a more humane, less injurious application of military force-would be widely regarded as illegitimate and lawless. As a legal matter, how accurate must the United States be in ascer- taining whether those it captures and detains long-term as enemy ter- rorists at Guantanamo and elsewhere really are so? This Article begins to answer that question. For the foreseeable future, the United States and its coalition part- ners will continue to capture and detain alleged al Qaida members and other suspected terrorists. Unfortunately, despite multiple levels of screening by U.S. forces, other government agencies, and now in some 1. Pamela Constable & Dafna Linzer, Confusion Shrouds Pakistan Attack, Wash. Post, Jan. 18, 2006, at A10; Thomas Omestad, Pakistani Leader Softens Criticism of U.S., U.S. News & World Rep., Feb. 14, 2006, at www.usnews.com/usnews/news/articles/060214/ 14pakistan.htm (on file with the Columbia Law Review). 2008] DETENTION AS TARGETING 1367 instances courts, some of those captured and detained for long periods, and in some cases subjected to harsh interrogation, are likely to be civil- ians with little or no connection to terrorism, erroneously swept up and mistakenly held. To put the central question another way, what is the standard of certainty a state must exercise in sorting out suspected ter- 2 rorists from nonterrorists for the purposes of detention? Amid all the controversy about the adequacy of procedural protec- tions at Guantanamo and elsewhere, this substantive question has gone largely ignored. The Supreme Court's recent decision in Boumediene v. Bush, for example, held that detainees at Guantanamo are entitled to constitutional habeas corpus rights to challenge their classification as "en- emy combatants," but it did not address the certainty with which the state must prove detainees' status. 3 And neither the law of war, which the U.S. government asserts is the relevant body of law for regulating such deten- tion, nor criminal law, which many critics assert is the proper body of law to apply, provides a satisfactory answer. 4 At worst, there is a gap in the law; at best, the practical problem of distinguishing members of a major, global terrorist network from innocent bystanders strains either body of law. This Article offers a way to fill that gap derived from basic law of war principles. While that body of rules does not explain how accurate a party to a conflict must be in separating suspected fighters from civilians for the purposes of detention, it says a lot about a closely analogous prob- lem (or, one might argue, a larger version of it): the problem of identify- ing and striking military targets while protecting civilians and civilian property. Indeed, the challenge of differentiating enemy terrorist fight- ers from the surrounding civilian population is a common challenge of target identification and the ability to apply force precisely: Is the individ- ual an enemy fighter (i.e., a combatant) and therefore subject to the ap- plication of force (i.e., capture and detention)? My central claim is that, in looking to the law of war as a possible starting point, one should focus not on detention law-the body of international law primarily concerned with the treatment conditions under which captured enemy fighters are 2. "Terrorism" is hard to define; as the saying goes, one man's terrorist is another's freedom fighter. For the purposes of this paper, I restrict my analysis to al Qaida and terrorist networks affiliated with it, because those are the enemies against which the executive branch considers itself at war. See Memorandum from George Bush, President of the U.S., to the Vice President et al., Humane Treatment of al Qaeda and Taliban Detainees para.