Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties. Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism. The sequel to Little Brother, Homeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.
A large portion of the book’s plot rests on the intersection of law and technology. Bruce Schneier thought the technology was handled pretty well, which is a strong endorsement. But what about the law? There are a couple of minor errors (e.g. referring to the 9th Circuit Court of Appeals as the “9th Circuit Appellate Division Court”) that make one wonder about the larger issues. Was it illegal for Marcus and his friends to have been imprisoned at “Gitmo-by-the-Bay” without access to an attorney and without being charged with a crime? And what about the waterboarding? Could the Bay Area Department of Homeland Security be headed by a Major General and staffed by other members of the military? Could the State Troopers have saved the day?
We’ll talk about the first two questions today and the second two in a future post.
Immediately following the destruction of the Bay Bridge by terrorists, Marcus and three of his friends are taken to a prison facility on what is later revealed to be Treasure Island, an artificial island in San Francisco Bay. There they are interrogated, denied access to an attorney (despite at least Marcus demanding to see one), and subjected to cruel treatment. For example, Marcus is denied food, water, and toilet access for approximately 24 hours while being held in wrist restraints. Marcus and two of his friends were held for five days (one remained there for months). Later, Marcus is waterboarded, and it is suggested that other prisoners were tortured as well (more on that below).
But first things first: could the government detain them in the first place?
A. Enemy Combatants
The government’s theory seems to be that Marcus & Co. are being detained as “potential enemy combatants.” The Non-Detention Act, 18 U.S.C. § 4001(a), prohibits the detention of any American citizen unless authorized by Congress. The government has tried unsuccessfully to argue that the post-9/11 Authorization for Use of Military Force Against Terrorists implicitly authorized the military detention of American terrorism suspects in this country. Padilla v. Rumsfeld, 352 F.3d 695, 722-23 (2d Cir. 2003), rev’d for lack of jurisdiction, 542 U.S. 426 (2004). The Supreme Court ultimately did not directly address the issue of detention, but the government is already on shaky ground.
(Update and clarification: In Hamdi v. Rumsfeld, the Supreme Court held that the AUMF authorized the detention of “individuals who fought against the United States in Afghanistan as part of the Taliban.” 542 U.S. 507, 517 (2004). And the Fourth Circuit held in Padilla v. Hanft that an American citizen who trained and served with the Taliban in Afghanistan and fought against American forces but who was not captured until he returned to the US to commit terrorist acts could also be detained. 423 F.3d 386, 391 (4th Cir. 2005), cert. denied, 547 U.S. 1062 (2006). In that case it was observed that Padilla ((NB: a different Padilla than in Padilla v. Rumsfeld) had “associated with forces hostile to the United States in Afghanistan” and “took up arms against United States forces in that country in the same way and to the same extent as did Hamdi.” Id.
In this case, none of the main characters have ever been to Afghanistan, much less taken up arms against the United States there. The DHS accuses them of being associated with Al Qaeda, but they have no evidence that would support a detention. The Second Circuit Padilla case seems much closer to the facts here.)
B. Contesting Detention
But even if Congress had authorized the detention of an enemy combatant in these circumstances, the Supreme Court has also held that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.” Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004). Marcus is a native born US citizen, and Treasure Island is part of the United States, so the rule in Hamdi applies.
In fact, even if Marcus were a non-citizen being held in the actual Guantánamo Bay, he would still have the right to challenge his detention in US district court. Rasul v. Bush, 542 U.S. 466 (2004); Boumediene v. Bush, 553 U.S. 723 (2008).
So for its part the government doesn’t have much of a leg to stand on. How does Marcus respond?
One of the first things Marcus does when being interrogated is ask if he’s under arrest. This is a reasonable question to ask if there’s any doubt (e.g. if you’ve been stopped on the street). But if you’ve been hooded, stuffed into a truck, and shackled, well…”a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
In any case he is informed that he’s being detained by the Department of Homeland Security. So, yes, he’s under arrest. Technically speaking, he has been “seized” under the Fourth Amendment.
C. The Right to an Attorney
Next Marcus asks to see an attorney. This is smart. He’s invoking his Sixth Amendment right to counsel. At the federal level, exactly when the right to counsel begins is a little fuzzy, but in California, the right starts when “(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements,” People v. Morse, 70 Cal.2d 711, 722 (1969). All three requirements of the test seem to be met here.
Another key advantage of invoking his right to an attorney is that, under Miranda v. Arizona, “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” 384 U.S. 436, 474 (1966). The government’s failure to give Marcus a Miranda warning and its blatant trampling of his Miranda and other constitutional rights mean that whatever evidence they collected from the interrogation is likely inadmissible.
But does Marcus, as an “enemy combatant,” have a right to an attorney in the first place?
In the Hamdi case, Hamdi was denied immediate assistance of counsel and the Fourth Circuit disposed of the case without allowing him to meet with an attorney, so the Supreme Court was asked whether or not detainees had a Sixth Amendment right to counsel. But because Hamdi had been appointed an attorney and granted unmonitored meetings with his attorney while waiting for the Supreme Court to decide his case, the Court considered it a moot point. So we don’t have a clear precedent from the Supreme Court on this issue. But the way the courts treated the Hamdi and related Padilla cases suggest that, at a minimum, US citizen enemy combatants probably do have a right to counsel to contest their detention under habeas corpus. See Padilla ex rel. Newman v. Rumsfeld, 243 F.Supp.2d 42 (S.D.N.Y. 2003).
To sum up: Marcus probably couldn’t have been detained the way he was in the first place, since there was no basis for a regular arrest and there was no Congressional authorization for his detention. Whether he was lawfully detained or not, he should have had access to an attorney. And since he unambiguously and repeatedly asked for an attorney, the interrogation should have stopped then and there.
Near the end of the book, Marcus finds himself back at the Treasure Island prison. This time he is waterboarded. His interrogation ends up being caught on film as state police break into the prison, but his interrogator seems to escape formal punishment.
Many scholars believe waterboarding is (and always was) illegal. See, e.g., Daniel Kanstroom, On “Waterboarding”: Legal Interpretation and the Continuing Struggle for Human Rights, 32 B.C. Int’l & Comp. L. Rev. 203 (2009). While the US has not admitted to waterboarding any US citizen detainees, it did waterboard foreign detainees, some dozens and dozens of times, likely to no net benefit. John McCain, Op-Ed, Bin Ladin’s Death and the Debate Over Torture, The Washington Post, May 11, 2011. But in the end, no one involved was prosecuted, and while that particular form of torture is no longer used, it has not been formally declared to be illegal. So that particular part of Little Brother is all too realistic.
So far Little Brother has done a good job of setting up an overreaching federal government. But does all of this military involvement in civilian law enforcement make sense? And can the state police really arrest the Feds? Tune in next week to find out!