More On Preventive Detention

Via Corrente, Ari Shapiro files an interesting report on preventive detention and how it might be enacted as an Obama Administration policy:

Attorney General Eric Holder . . . last week . . . testified before a Senate committee that a preventive detention program "would be some kind of review with regard to the initial determination [that the detainee should be held], and then a periodic review with regard to whether or not that person should continue to be detained."

(Emphasis supplied.) The devil is in the details of such a proposal but, as I wrote earlier (in my lonely support for a potential regime for preventive detention):

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

< From The Pols Are Pols File | Friday Evening Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Following the Geneva Conventions (5.00 / 2) (#1)
    by MKS on Fri Jun 26, 2009 at 02:53:37 PM EST
    and judicial review are absolutely essential.

    Hearsay=rumor mongering, score settling in a vendetta.

    Substantial evidence that the detainee is part of a foreign power sounds good.  But the potential for abuse looms large.  How many at Gitmo were/are actually innocent?

    Perhaps some requirement that the public be informed of who is being held and on what charges, with some redactions as needed.  Having the press, or bloggers, be able to check the power of the government would be helpful.

    The U.S. should avoid secret prisons with nameless prisoners.

    Mr. Wittes is @ Brookings (5.00 / 1) (#7)
    by oculus on Fri Jun 26, 2009 at 03:51:40 PM EST
    Institute  Who knows if the Obama admins.gives his proposals and weight?

    No segue:  today's NYT states at least six men suspected or convicted of crimes that threaten national security retain FAA licenses despite fed, law requiring revocation.Heck of a job guys.  

    I am completely opposed (5.00 / 5) (#8)
    by Jeralyn on Fri Jun 26, 2009 at 04:59:25 PM EST
    From your link:

    "Once you open the door to that idea of holding people because of presumed dangers, or saying we have reason to believe but no evidence to convict someone of a terrorism crime, then you start to cut away at the very foundation of what our system of justice is based on," says Human Rights First CEO Elisa Massimino.

    I also think preventive detention is a misnomer that doesn't accurately reflect what's at issue here: It's indefinite detention. Holding someone who has neither been charged nor convicted of a crime indefinitely, perhaps for life.

    It's unconscionable. And wrong.


    Obama drafting an executive order (5.00 / 4) (#9)
    by caseyOR on Fri Jun 26, 2009 at 05:02:50 PM EST
    that establishes a regime of "preventive detention."This whole idea is wrong on so many levels. And let's please not make the mistake of believing that this will be limited to actual terrorists (however that term gets defined). Afterall, the Patriot Act has proven to be a bit of a boon to law enforcement here in the USA. Once this is set up there is almost no way to keep it from being used against US citizens right here in America whose only "crime" is being someone the government doesn't like.

    Doesn't want the mess of Congress (5.00 / 3) (#13)
    by caseyOR on Fri Jun 26, 2009 at 05:50:11 PM EST
    The reason for using an executive order to handle this "preventive detention" business appears to be a reluctance to submit the ideas to a full, complete and robust public debate in Congress. The WaPo story I cited above also says that Obama is afraid taking this to Congress could splinter the Democratic Party. And, of course, putting it to a vote would require that everyone go on record. OMG! How would the voters react?

    I couldn't help but contrast this with (5.00 / 5) (#14)
    by Anne on Fri Jun 26, 2009 at 05:58:33 PM EST
    him refusing to sign an executive order stopping the DADT expulsions until Congress can address the whole issue.  I can't imagine that will be at all messy or divisive, can you?  Sheesh.  Why, one might even begin to think he doesn't really want to be seen as being the one who got that ball rolling.

    Who is this man?


    In my opinion (5.00 / 2) (#17)
    by kmblue on Fri Jun 26, 2009 at 06:50:30 PM EST
    he's a man who fights for the wrong stuff and is becoming as sneaky as Bush.
    We are not going to get health care out of this guy...
    only a messed up bill and excuses.

    According to DK poll, President's (none / 0) (#18)
    by oculus on Fri Jun 26, 2009 at 06:52:03 PM EST
    approval rating has slipped to 62.

    Obama is a good guy and a good (none / 0) (#23)
    by MKS on Sat Jun 27, 2009 at 12:49:36 AM EST

    The constant cavilling is excessive.

    Arguing for policy objectives makes sense.  Trying to tear Obama down personally does not.  


    you know him that well? (none / 0) (#24)
    by of1000Kings on Sat Jun 27, 2009 at 02:52:16 AM EST

    I've been around the block enough (none / 0) (#25)
    by MKS on Sat Jun 27, 2009 at 09:27:07 AM EST
    to make that judgment.

    And, of course, I conclude such based on what I have seen so far.  Being good doesn't mean being perfect, either

    Being deliberately cynical doesn't make one more accurate.....Some have a deliberate bias....


    And, Liberals (none / 0) (#26)
    by MKS on Sat Jun 27, 2009 at 09:40:56 AM EST
    tend to believe people are basically good while Conservatives believe people are basically bad, tainted by original sin.

    "Splinter the Democratic party..." (5.00 / 1) (#19)
    by kmblue on Fri Jun 26, 2009 at 06:53:56 PM EST
    Too late.

    Not really (none / 0) (#22)
    by MKS on Sat Jun 27, 2009 at 12:47:11 AM EST
    Most polling shows Obama enjoying strong approval from Democrats.

    The more I hear of this the more sickening it is-- (none / 0) (#16)
    by jawbone on Fri Jun 26, 2009 at 06:02:18 PM EST

    Glenn Greenwald will not take this well....


    Pretty amazing that our Founding Fathers, at the (5.00 / 1) (#15)
    by jawbone on Fri Jun 26, 2009 at 06:00:22 PM EST
    time of trying to get a new nation off the ground, could be so strong on preserving individual rights and freedoms. A new nation, in a new land, on a new contnent, surrounded by super powers of the time--think about it.

    Of course, in recent history, the founders had seen the effect of executive fiat and "preventive detention." They knew in their bones, as their recent ancestors might well have had theirs broken on the rack, that torture was wrong and that habeas corpus was of vital importance to protect a free nation.

    Sorry, BTD, have to diverge with you on this. I'm sure Roberts can come up with some cleverly worded sort of rationale, but it won't honor the spirit or words of the Constitution.

    I can't wrap my head around... (none / 0) (#2)
    by kdog on Fri Jun 26, 2009 at 03:22:05 PM EST
    the phrase "preventitive detention"...locking people up to prevent something from happening? wtf? How can there be any place for that in a free country what so ever?  If there is evidence of a crime being committed on US soil, make a standard arrest.  Absent that, let freedom ring, as "dangerous" as that may be.

    A battlefield is a different story...but if it was up to me we wouldn't be occupying countries in the first place.

    And the other question (5.00 / 1) (#3)
    by TeresaInSnow2 on Fri Jun 26, 2009 at 03:26:44 PM EST
    Assuming we can "trust" Democrats not to abuse the authority, what kind of "enhancements" will the next Republican president add to the policy?

    It just shouldn't be enacted...period.


    I agree... (5.00 / 1) (#6)
    by kdog on Fri Jun 26, 2009 at 03:36:47 PM EST
    I'll run the risk of being blown to bits as long as it is in a country where people are not placed in shackles on suspicion of future wrongdoing alone.

    wow (none / 0) (#4)
    by Capt Howdy on Fri Jun 26, 2009 at 03:33:07 PM EST
    its a scary world.  and I expect its only going to get more scary.  I hate to say I think I probably agree with your basic outline for the requirements but I dont think it should be possible for it to be without end.  it seems to me if that is justified there would be some other reason to hold the person rather than what they might do.
    I just cant get my mind around holding someone indefinitely on nothing but hearsay and suspicion.


    Still very uneasy with this (none / 0) (#5)
    by andgarden on Fri Jun 26, 2009 at 03:33:47 PM EST
    How long does it go on?

    Re "substantial evidence": (none / 0) (#10)
    by oculus on Fri Jun 26, 2009 at 05:14:06 PM EST
    is this used as a term of art, such as sufficiency of the evidence to support a jury verdict?

    Rubber stamp in practice (none / 0) (#11)
    by MKS on Fri Jun 26, 2009 at 05:31:29 PM EST
    De novo review by an appellate court would be better.

    Hey, its more than a scintilla. (none / 0) (#12)
    by oculus on Fri Jun 26, 2009 at 05:39:04 PM EST
    Whadda ya want?

    Sounds absolutely perfect (none / 0) (#20)
    by Militarytracy on Fri Jun 26, 2009 at 09:11:25 PM EST
    But Gen. McChrystal can get the "job" done without us tying his hands behind his back BTD.  Danger, acidic dripping sarcasm!

    And I'm not sure (5.00 / 1) (#21)
    by Militarytracy on Fri Jun 26, 2009 at 09:13:22 PM EST
    where the special forces assassination crews work into the Geneva Conventions either.

    I've tried to ignore certain things (none / 0) (#27)
    by Militarytracy on Sat Jun 27, 2009 at 10:10:39 AM EST
    It doesn't seem to matter if you say something about something that nobody wants to hear these days..........must.......paint.......toes. It is my opinion BTD that this Preventive Detention thing is just the tip of the iceberg being built to enable some very very scary chit for Obama's war.  Per Mr. Hersh, March 11, 2009.

    At a "Great Conversations" event at the University of Minnesota last night, legendary investigative reporter Seymour Hersh may have made a little more news than he intended by talking about new alleged instances of domestic spying by the CIA, and about an ongoing covert military operation that he called an "executive assassination ring."

    The military is a very closed system when it comes to oversight.  You need to be so careful right now what power you are willing to grant them it isn't even funny.  They have even placed Mr. Militarytorture in charge of the whole operation.  This isn't funny anymore, these people are scary!