Little Brother, Part 1

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 BrotherHomeland, 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.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

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.

I. “Gitmo-by-the-Bay”

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.

II. Waterboarding

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.

III. Conclusion

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!

22 responses to “Little Brother, Part 1

  1. Melanie Koleini

    It’s interesting to debate the legalities of the government’s actions in the book. But I thought one of the points of the book was the government must be held accountable to the people. If it’s not, ‘legal’ or ‘illegal’ are irrelevant because whatever the government does is ‘right’ just because they say so.

    • That’s a good point, but recall that the government’s actions were found to be unlawful under existing law. It didn’t take a revolution, constitutional amendment, or even an election. Marcus and the other hackers first had to expose the weakness and abuses of the government’s response to the attack, but in the end, as they say, “the system worked.”

    • Melanie is completely correct here, of course. Sadly it’s not a fictional example. There are plenty of real-world abuses of the legal system of this nature, all-too-easy to find. Theoretical illegality of an action means nothing if there is no mechanism to enforce the law – just ask Majid Khan.

      Indeed, why is Guantanamo the location of a prison camp in the first place? It makes little logistical sense. It was picked precisely because it prevented effective court or civilian oversight of government actions. (Note that the then administration repeatedly claimed that the site was not subject to US court jurisdiction at all.)

  2. Guantanamo remains, I believe, because the decisions of the Supreme Court indicate that foreign prisoners of war brought onto US soil will acquire certain rights under the Constitution the same way that someone visiting our country on a temporary visa has certain rights, perhaps including the ability to challenge their detention in our normal justice system as opposed to under the Uniform Code of Military Justice. What exactly hasn’t been hashed out to the fullest extent.

    But that means that bringing a foreign prisoner of war onto US soil could be very dangerous. Such a person could be granted a normal trial, and demand for his defense to see evidence against him that was gained through signals intelligence or through spies. The defense could then pass on that information to our enemies (though that would be illegal) and allow them to discover who was being successfully eavesdropped upon or who in their organization was a spy. In addition, military officers in the field are not available to testify the way police are, nor are they trained or expected to be gathering evidence on the battlefield in the correct manner. It would be very easy to throw out evidence that was improperly collected – soldiers don’t get a warrant before they bust in a door and clear a house on the battlefield.

    The result of this legal culture makes it unwise to bring a prisoner of war onto US territory, despite our historical past of doing so occasionally.

    • Guantanamo remains because the President’s plan to close it involved bringing the terrorists to the U.S., trying them for crimes, and holding those convicted in federal prisons. Congress refused to allocate any money for any part of this process, leaving the President with two choices: Keep people at Guantanamo, or set them free.
      (There are also some people housed at Guantanamo even though they’ve been adjudged as not being enemy combatants, but there being no place to repatriate them.)
      The key Supreme Court finding being that the “where they are being held” is immaterial; due process attached when the U.S. government decides to hold someone. President Bush’s administration selected Guantanamo Bay as being firmly in U.S. military hands, far away from the battlefield, and theoretically part of Cuba, not the United States… and therefore immune from judicial oversight. The Court disagreed.
      As long as they’re in Guantanamo, prisoners are entitled to due process to determine if they are, in fact, enemy combatants; a status which becomes meaningless if and when the U.S. withdraws from Afghanistan. If they get charged with terrorism-related crimes (which would allow them to be held after hostilities have ceased) in federal court, then the normal rules of evidence apply.

    • It’s not problematic to bring a prisoner of war onto US soil. A POW is simply treated as a soldier of a foreign army, to be held for the duration of the conflict. He can be monitored and his communications censored. However, the Bush administration argued (falsely) that the Geneva convention doesn’t cover terrorists so they made up a new category called Enemy Combatants. The problem is that the convention does cover terrorism, it says explicitly that when somebody is captured in a conflict they have to be assigned into one of three categories: soldiers to be treated as POWs, criminal suspects (the category terrorists should be in) to be tried in court or innocent civilians to be let free. However, since the Bush administration found treaties and rule of law inconvenient they went ahead and gutted the Geneva convention.

      I guess my pedantic point is, don’t confuse the terms POW and Enemy Combatant.

      • I hasten to add here that enemy combatant used to be largely synonymous with enemy soldiers (though I’m unsure if it was a legal term or simply military lingo), until the Bush administration twisted its meaning to suit their purposes.

      • You’re right that the Geneva Convention applies to terrorists, but I’m not sure that that means what you think it means.

        It applies to them because it applies to everybody. Terrorists are not a new species, somehow foreign to the drafters of the Convention. They are either soldiers or they are not soldiers. The Convention addresses both classes. It doesn’t give non-soldiers who purposely involve themselves in armed conflict much shrift.

        It should also be noted that “Geneva Convention” is a shorthand for a patchwork of agreements, protocols, and so forth: The US is a signatory (please don’t play word games with “signed” and “ratifed,” kthnx) to most, not all, of the formal ones. Many of the alleged violations of the “Geneva Convention” by the US involve a particular part or parts which it is not a signatory to. Many people feel the US *should* be a signatory to them, just as many people feel the US should sign the anti-land-mine treaty, the Kyoto protocols, etc. But that is why we refer to “ought/is” problems. Maybe the US ought to be a signatory. It isn’t, though.

  3. “Little Brother” as a work of fiction was a legitimate look at the intersection of law and technology. When a government feels under attack they will take a variety of steps to maintain civil order and a (probably modified) rule of law, even if that includes martial law. Which is what seems to happen in “Little Brother”.

    Does the normal rule of law apply in times of crisis? And how far do they extend and to whom? These are the questions that I believe Mr. Doctorow was looking at in the novel. And within that context I believe he managed to come very close to what would actually happen.

    Given the excesses that have occurred in normal circumstances in the US under the DHS it is reasonable to believe that this would not be all that far from the truth in the case of another “terrorist” attack on home soil. The news channels have been awash in cases of abuse of process since 9/11. Children under “no fly” orders, racial profiling to name two under what Mr. Schneier has aptly called a “theatre of security”.

    I was in school at the time of the imposition of martial law in Quebec during the FLQ crisis. Armed Forces all around the major cities of the province enforcing the new rules while the intelligence forces attempted to find and release kidnapped officials. This all took place over some small bombings and the kidnapping of two officials. One can also look at Northern Ireland for some background on what could happen when a government feels threatened.

    So under this scenario I can see the lifting of civil rights (either some or all) and armed forces in the street. Would the normal rule of law be extended to the populace? They were not extended to the Japanese during the Second World War. So what is the chance they would remain under another attack on US soil?

    • Melanie Koleini

      I agree with your analysis. The question I have (which the next post may address), is: After the crisis is over and the public’s tolerance of martial law passes, then what?

      Many people believe water boarding is torture but no US official has been charged with war crimes. The surviving Japanese Americans that were put in internment camps during WWII were paid reparations but that was decades latter. When the government (or a corporation) commits a crime it seems the only punishment is to make the government pay money to the victims (and hopefully, stop doing the illegal thing). Since the people who ordered or did the illegal acts don’t have to pay personally, this result isn’t very emotionally satisfying. At what point does ‘I was only following orders’ stop being a defense against criminal proceuction?

      • During the U.S. Civil War, Lincoln suspended civil rights (including arguably the most important of all, habeus corpus) in several areas of the Union to silence dissent questioning the pursuit of the war, and of course, there was considerable limitation of civil rights in the areas that had rebelled and attempted secession, both before the conflict and continuing afterwards (including limitations on elective and civil service for those who’d served the Confederacy). Of course, the threat faced by the U.S. government then was actually existential; had they failed, the U.S. would have ceased to exist as a single country and would probably have divided further in the period since.

  4. Super interesting review! Reading the book through the eyes of a Computer Scientist I was positivly suprised by the use of the technical lingo, simple descriptions of baysian statistics, assymetric encryption, linux, etc.
    That some stretches are made to make the book interesting (the -should- have stopped the interview, but didn’t) just makes it more realistic (US was not supposed to torture detainees, but did either way and no one was prosicuted. So what are logical next steps in the development?).
    Much more anoying in my (computer science-y) view is the photononomous program (bending the rules of the technical domain instead of the “soft” juridical domain) that they use to remove the camera fingerprints/noise-signature. There is no way to do this in my knowlege, except maybe compressing the image file to remove noice, but this does not seem very foolproof.

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  6. The major element that makes a captured terrorist different from a captured soldier is the uniform. Historically, partisans and resistance fighters caught without a uniform were executed outright, while soldiers in uniform were treated as POWs.

    Also, my understanding was that precisely 3 detainees were waterboarded, and at least one of them provided information of value. While I can understand the concern over the procedure (I nearly drowned once as a child, and it was terrifying) I believe the actual legality is likely going to be determined by the legislature. Coercive techniques are part and parcel of intelligence interrogation. The line needs to be drawn somewhere, but I don’t see why a court should do vs. congress. Preferable, the law would be classified, such that an individual being interrogated might expect to be waterboarded, even though such activities may be banned.

    Also, I would also suggest that a lot of the discussion hinges on whether the act of terrorism is viewed as an act of war by a non-state actor, or a criminal act. The government treated the bombing of the WTC as a criminal act, while it treated the 9-11 attacks as an act of war. In my opinion, both of them should be viewed as acts of war (an opinion shared by the prosecutor in the WTC bombing case) but this a debatable position that can argued.

    • “Preferable, the law would be classified, such that an individual being interrogated might expect to be waterboarded, even though such activities may be banned.”

      Because when my rights are violated, I want to not be sure whether my rights are violated?

  7. My understanding of the term “enemy combatant” is that it is roughly congruent with the Geneva Conventions’ use of the term “irregulars” – ie people committing acts of war while not in the uniform of a warring party, an that they were explicitly denied most of the protections.

    I could be wrong: I’m an amateur history buff, not a lawyer.

    • the actual term is different- and it’s that their affiliation is easy to determine without asking them, not that they wear uniform as such- but yes, in such a situation, the geneva conventions don’t all apply. It, however, still doesn’t justify Gitmo.

  8. 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 terrorism suspects. Padilla v. Rumsfeld, 352 F.3d 695, 722-23 (2d Cir. 2003), rev’d for lack of jurisdiction, 542 U.S. 426 (2004).

    Actually, the argument was made quite successfully and accepted as a holding by the Supreme Court in Hamdi, 542 U.S. 507, 517 (2004) (“we conclude that **2640 the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied § 4001(a)’s requirement that a detention be «pursuant to an Act of Congress» (assuming, without deciding, that § 4001(a) applies to military detentions)”), as well as by the Fourth Circuit in Padilla, 423 F.3d 386, 395-396 (4th Cir. 2005), cert. denied, 547 U.S. 1062, 126 S.Ct. 1649 (2006) (mem.).

    • Actually, the argument was made quite successfully and accepted as a holding by the Supreme Court in Hamdi

      Note that “the narrow category we describe” was “individuals who fought against the United States in Afghanistan as part of the Taliban.” The Second Circuit Padilla case (and the facts of Little Brother) concern detention of American citizens on American soil.

      The Fourth Circuit Padilla case was more complicated. That Padilla was an American citizen who allegedly trained and served with the Taliban in Afghanistan during the US war there, but he was not captured until he came to the United States, allegedly to commit terrorist acts. So he was an American citizen on American soil but had still “fought against the United States in Afghanistan as part of the Taliban.”

      I should have been more clear (and I will correct the post), but I was limiting the discussion to American citizens on American soil. Here, the Second Circuit case is the most closely analogous, and it held that the AUMF did not go that far.

  9. I think there’s some missing the point going on here: this is a work of fiction exploring the world of the possible. It is clearly impossible for the US government to break the laws of physics; but it is entirely possible for the US government to break the laws of the United States.

    Even if it is unthinkable to the academic lawyers who wrote this article.

    The question is how grossly – how damagingly, or how lethally – might those laws be broken in a state of emergency? And for how long?

    The rule of law is reimposed at the end of the book: I love a happy ending and I guess a publication aimed at young adults should reinforce an optimism about humanity and society’s improvement, and reaffirm a strong belief that there is a ‘right thing’ to do – and that doing it will work.

    Practising professionals at law might tell you something different about the millions of young Americans in prison after plea-bargain coercion. Was ‘the right thing’ done? Is their incarceration legal, except in the narrow legal sense that no successful legal challenge has been made to the charges that were laid against them. As no effective legal challenge has been made at all, I might ask: what is law? Are they all guilty as charged? What is ‘legal’?

    At least they’re not being waterboarded, although forced labour, beatings, anal rape, rectal syphilis, AIDS and death are just another day. And, by any meaningful definition, legal – however unthinkable that may be to theorists of jurisprudence.

    And what’s ‘illegal’? I recall that the illegal detentions of Japanese-Americans, the syphilis experiments, the radiation experiments, and sterilisation of the mentally-handicapped were legal *enough* to go on for a very long time.

    Perhaps the illegal – but not impossible – actions of the US government are unrealistic in this work of fiction insofar as they were halted in mere months. And the impunity of the officials perpetrating these acts is hardly fictional at all.

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  11. I think you concede a point here inadvertently:

    But does Marcus, as an “enemy combatant,” have a right to an attorney in the first place?

    Should you not put the word “alleged” in there? Isn’t everything the government says about Marcus “alleged” in a legal sense until a trial? I’m trying to recall whether martial law was declared in the book. Does martial law change the effect of “alleged” or not?

    The whole notion that congress has abdicated declaring actual war, giving war-like powers to the executive branch in an ill-defined “powers” act over ill-defined people in ill-defined places and ill-defined situations, carving out huge swaths of people and activities from civil and criminal law and putting them under military law as alleged “enemy combatants” is highly dubious – if the founding fathers would have found anything shocking about today’s society, it would be this.

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