I think there may be merit in a detention regime (the military commissions proposal seems fatally flawed to me as described) that detains known combatants in a manner that is compliant with the Constitution and the Geneva Convention.
Shapiro interviewed Benjamin Wittes, who is unveiling a proposal that may presage the Obama proposal:
Wittes' proposal has complicated restrictions on whom the detention system would apply to. U.S. citizens would not be part of the system. The president could detain only "an agent of a foreign power" against whom Congress has authorized the use of military force. The detainee would also have to be "a danger both to any person and to the interests of the United States."
In the first phase of detention, the president could pick up anyone who fits those criteria and hold the person for 14 days. If the president wanted to hold the person longer, a judge would have to approve.
The detainee would have an attorney and hearsay evidence could be used against him, though not evidence obtained through coercion. If a judge is persuaded that the detainee is a threat, the president could hold the detainee for six months. At the end of six months, the president could go back to the court and repeat the process.
Effectively, Wittes concedes, someone could be locked up forever as long as a court approves of the detention twice a year.
There are some positive aspects to Wittes' proposal but also some serious flaws. For example, I would certainly object to granting the President the power to detain anyone in the United States for 14 days without court sanction.
A detainee should be able to challenge such a detention within no more than the 3 days from detention at a maximum. Such a detainee should immediately be afforded an opportunity to speak to a lawyer and to invoke all rights under the Constitution and the Geneva Conventions.
Persons detained outside of the United States outside a theater of war must immediately be accorded Geneva protections, including the right to challenge their status as combatants.
Further, the use of hearsay evidence is unacceptable. As the Supreme Court recently held, the right to confront the witness against you is a fundamental right. This must be true for all detentions which occur in the United States.
The thorniest issue will be what burden of proof will the government carry to be able to detain a person, either in the United States or outside the United States (not in a theater of war.) I suggest that the standard must be higher than that for an arrest. After all, an arrested person can seek bail whereas a person preventively detained can not. So what standard? How about "substantial evidence" that the detainee is a part of a "foreign power" (assuming this includes terrorist organizations)) that the government formally considers "at war" with the United States.
Anyway, these are my initial thoughts. What say you?
Speaking for me only
