The Virginia NDAA Law: An Exchange

Our good friend, David Remes, not only misconstrues our arguments, but also appears to be arguing against himself.  To begin with, we make two sets of arguments about the problems created by Virginia’s HB 1160--symbolic and practical.  To take them in this order, we don’t see how any statute which “disassociates the Commonwealth from military detention of citizens”--David Remes’ characterization with which we take no issue--does not at the same time purport to delegitimize the laws-of-war architecture.  The essence of this architecture is not, of course, the notion that in time of war law falls silent, but rather that, when armed conflict arises and for as long as it continues, the detention and possible prosecution of captured enemy combatants, whatever their nationality, is governed under a body of law that is different from that governing the civilian criminal justice system.  This is an unexceptionable proposition and is well-established in the Supreme Court case law, both before and after the 9/11 attacks. It is also, unfortunately, the case that this view is not shared by a number of human rights lawyers, including Remes, who continue to mischaracterize the detention of captured enemy combatants as an unconstitutional “indefinite military detention”.  While we do not wish to replough this well-churned legal terrain, it should suffice to point out the Supreme Court has stated clearly and repeatedly, most recently in Hamdi, that captured enemy combatants, of whatever nationality, can be detained, consistent with the traditional laws of war and long-standing state practice, for the duration of hostilities.  The fact that hostilities can last for a long time, or that nobody may know how long the conflict will last, does not make such a conflict indefinite. Nobody has ever argued that captured enemy combatants can be detained indefinitely beyond the end of the armed conflict in which they were captured or that they can be detained solely for the purpose of obtaining actionable intelligence; the purpose of their detention is to prevent their return to the battlefield.  In this context, we frankly don’t understand Remes’ point, that Congress “hasn’t gotten the message,” since the FY2012 National Defense Authorization Act (“NDAA”) is entirely consistent with this binding case law.  Meanwhile, President Obama’s pledge, which David Remes praises, that he will not hold U.S. citizens in indefinite military detention, is nothing more than a policy statement, rather than a constitutionally-meaningful objection.   Even as a policy statement, it is misleading, since neither we nor anybody else we know has ever argued in favor of an indefinite military detention. But, most importantly, Remes, opposing the military detention of captured enemy combatants, celebrates the fact that HB 1160 sends a strong symbolic message, aligning the Commonwealth with his position.  This being the case, we do not understand how he can take issue with our key conclusion that HB 1160 helps, albeit in some small measure, to delegitimize the laws-of-war architecture.  Unfortunately, we are not being Chicken Little. Indeed, as Remes knows well, beginning soon after 9/11, we have seen a relentless effort to delegitimize not only military detention, but also the traditional norms governing the actual use of force on the battlefield, including such key laws-of-war-related issues as who is a combatant, what are the possible levels of collateral damage, what types of weapons can be used, etc.  This exercise, which has been aptly dubbed “lawfare” by Charles Dunlap, includes actions in the courts of law and the court of public opinion, political battles in Congress, and even bureaucratic skirmishing among the opposing factions within the Executive Branch.  Does Remes deny this? Now, having finished with the discussion of HB 1160’s bark, what about its bite?  Here, we have never claimed that the bite is all that powerful, but it is real.  Part of the problem is that the Virginia law is so badly drafted that it is difficult to discern how it would actually work.  In this regard, it is not clear how the how well the language that limits the reach of the statutory prohibition only to certain situations--“knowingly” aiding the United States in military detention-related matters and only when doing so would amount to a “violation of the United States Constitution” (changes made by Governor McDonnell in the final days of the legislative process and hailed by him as something that has fixed the problems created by the previous version of the legislation)--would actually work.  For example, if a Virginia state trooper stops an al-Qaeda member, who establishes to the trooper’s satisfaction that he is a U.S. citizen, and that trooper also knows that the federal authorities have indicated that military detention is their preferred option for dealing with captured enemy combatants, would his failure to release such an al-Qaeda member (who, let’s assume, has broken no Virginia law) amount to a knowing aid to the federal military detention?  Quite possibly so, but one cannot be sure. What about the question of whether such a detention would violate the U.S. Constitution?  The Supreme Court is clear, in our view, that military detention of captured enemy combatants is entirely constitutional, provided that they are given access to habeas corpus.  However, in the view of various human rights lawyers, including perhaps Remes, the Supreme Court has only blessed the detention of those combatants who are captured in the zone of “active ongoing combat,” e.g., Afghanistan, and not of combatants, who are captured in the United States or in places like Yemen, where, as far as the critics are concerned, the combat is not active enough. We also would not be surprised if the critics claim that, because the Supreme Court has never directly addressed the question of how quickly habeas corpus must be made available to an enemy combatant held in  military detention, any detention regime that does not enable a U.S. citizen detainee to gain access to a lawyer and mount a habeas challenge within a period of, let’s say, 30 days is unconstitutional.  While we do not believe, given as the experiences of Hamdi and Jose Padilla, that the Supreme Court would be troubled by a more leisurely pace, the issue is not settled with absolute clarity. How is a poor Virginia state trooper to resolve these quandaries?  Will he and his colleagues seek an opinion from the Virginia’s equivalent of the Office of Legal Counsel?  The bottom line is that the practical impact of this legislation is to foster uncertainty and create a substantial doubt in the mind of Virginia’s police, prison authorities, national guard, and all other state officials who might come into contact with enemy combatants as to what can and cannot be done.  To put it mildly, while this is not the end of the world, this is not a good thing. This brings us to the last point pressed by Remes – is HB 1160 constitutional?  Here, a couple of points ought to be made.  First, while the NDAA does not impose any obligations on the States, numerous federal appropriation statutes,  and corresponding regulations promulgated by, most prominently, the Department of Homeland Security, have provided billions of dollars to the States subject to certain conditions, which include fulsome and wholehearted state cooperation in counter-terrorism tasks and missions.  Because HB 1160 prevents Virginia from complying with these conditions, Virginia would have to return these funds.  And to the extent that Virginia’s state officials have to certify compliance as a part of the disbursement of these federal funds, they may well be liable for the violation of various federal anti-fraud statutes. Second, to the extent that Virginia law can be read to interfere with the activities of the “federalized” Virginia national guardsmen – for example, a guardsman serving in Afghanistan whose duty station is a joint intelligence collection center, tasked with trying to ascertain the whereabouts of a certain enemy combatant who also happens to be a U.S. citizen and whom the federal government post-Obama Administration is planning to detain rather than taken out with a drone – it is flat out unconstitutional.  To be sure, perhaps the drafters of the HB 1160 believed that this problem is cured by limiting the reach of this law to members of the Virginia National Guard “on official State duty”; if so, it is not clear that they have succeeded, because determining the precise status of the “federalized” National Guard is a fact-intensive issue.  Such guardsmen are within the federal military chain-of-command and benefit in certain circumstances from a variety of federal statutes that have been enacted to benefit members of the armed forces.  Yet, such guardsmen do not entirely lose the benefits available to them under State law and, for certain purposes, are still regarded as State employees. The bottom line is that, as we have argued in the Washington Post and the Wall Street Journal has editorialized, HB 1160 has created a host of symbolic and practical problems.  It is a solution to a problem that does not exist and a bad law all around.