Once More On Preventive Detention

This post from Liza Goitein of the Brennan Center for Justice guestblogged at Balkinization is a very good explanatory of why the issue is such a difficult one in current times. The key graf for me:

The U.S. thus has authority under domestic law to apply the same detention rule that the law of war establishes in international armed conflict. The problem with this arrangement is that the rules that apply in international armed conflict are a poor fit for the war we’re actually fighting. Wars against other nations differ from wars against irregular forces, and those differences are at least intuitively understood by the American public and the rest of the world.

Addressing arguments such as the ones I have made (and here), Goitein writes:

Some have argued that the answer is something in between the preventive detention model for prisoners of war in international armed conflict (i.e., detention for the duration of hostilities without any individualized assessment of dangerousness) and no preventive detention at all: a more constrained system of preventive detention, in which the government must prove future dangerousness in each case and the detention is subject to frequent review. Indeed, such a system would be at least partially consistent with the law of war, which authorizes the detention of civilians in international armed conflict under just such constraints. (I say “partially” because international armed conflicts, as noted above, are less likely to last forever.) But I’m not sure it would be consistent with our own concept of due process—specifically, the idea that people who are capable of controlling their own actions should not be subject to potentially endless detention based on predictions of “future dangerousness.” And that’s one reason why the debate on preventive detention is very far from over.

A very interesting piece and one that I am currently pondering.

Speaking for me only

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    having given this whole subject (5.00 / 1) (#11)
    by cpinva on Thu Jul 02, 2009 at 10:52:12 PM EST
    some thought, i've come to a conclusion:

    the whole basis of the issue itself is built on a foundation of shifting sand.

    we are not at war, haven't been since 1991. yes, yes, i know, we have military in both afghanistan and iraq, people have been killed and injured, a bunch of lunatics flew planes into buildings here in the US. i realize all this.

    i say we aren't at war because, by and large, our government's done few of the things we would ordinarily expect, if our country were truly "at war": we have no draft; there is no rationing, of any kind; industries haven't been converted to the production of war materials and supplies; no war bonds have been issued/sold, etc.

    if we are indeed in a world-wide "war" against terrorism, why have none of these things been done? simply put, it's because every politician in washington knows that, to put all these items in place, would require convincing nearly 300 million people of the necessesity of it, and they know that's an impossible task, given the scant evidence available.

    instead, we are nickel n dimed to death, our rights diminshed slowly and with little fanfare, but with no personal burden placed on any of us, yet.

    and so it's come to this: "preventive detention", clearly violative of the constitution, full circle from what the author's were fighting against.

    An apt image...a foundation of (none / 0) (#13)
    by oldpro on Fri Jul 03, 2009 at 01:21:49 AM EST
    shifting sands.  Impossible to build a permanent, sustainable structure on such a foundation.

    As a young person, I always thought the constitution was 'like the Rock of Gibralter'...until I heard Sinatra sing
    "...in time, the Rockies may crumble,
    Gibralter may tumble,
    they're only made of clay..."

    Given enough time and enough erosion, the clay becomes sand...shifting sand...as Dylan said, "blowin' in the wind."


    It seems to me that (none / 0) (#1)
    by andgarden on Thu Jul 02, 2009 at 05:13:19 PM EST
    the "worst of the worst" are the ones who claim to owe loyalty to Bin Laden. I think we should treat them the way we treat crazy people and have them committed, subject to periodic review.

    The rest I think we have to try or release.

    Where is the line (none / 0) (#5)
    by TeresaInSnow2 on Thu Jul 02, 2009 at 06:21:36 PM EST
    drawn on worst of the worst?  and who gets to draw that line?

    I just drew the line (none / 0) (#6)
    by andgarden on Thu Jul 02, 2009 at 06:26:45 PM EST
    but courts will have to make more specific assessments.

    So define (none / 0) (#9)
    by TeresaInSnow2 on Thu Jul 02, 2009 at 07:10:37 PM EST
    worst of the worst?

    Answer:  it is anything the administration (Democratic or Republican) says it is.

    There is no line, there are only shades of grey.


    Try reading again (none / 0) (#10)
    by andgarden on Thu Jul 02, 2009 at 07:12:49 PM EST
    the ones who claim to owe loyalty to Bin Laden.

    This one's a Witch, I say! (none / 0) (#12)
    by Ben Masel on Fri Jul 03, 2009 at 12:31:50 AM EST
    So right now (none / 0) (#15)
    by Steve M on Fri Jul 03, 2009 at 08:54:25 AM EST
    if I claim loyalty to bin Laden, should I be detained?  Isn't there a bit of a First Amendment violation if I haven't actually DONE anything?

    Well, that's what the judicial review (none / 0) (#16)
    by andgarden on Fri Jul 03, 2009 at 10:24:37 AM EST
    would be for. If we found you in a cave in Afghanistan with an AK-47 when you first said it, then yes, probably.

    What would Justice Jackson say? (none / 0) (#2)
    by oldpro on Thu Jul 02, 2009 at 05:28:22 PM EST

    Good question (none / 0) (#3)
    by Big Tent Democrat on Thu Jul 02, 2009 at 05:31:21 PM EST
    I'm not sure. Are you?

    Nope...but I've been thinking (none / 0) (#4)
    by oldpro on Thu Jul 02, 2009 at 05:48:51 PM EST
    about it.  His thinking seemed to evolve as necessity demanded, whether legal or political or both.

    There's this...1951 Buffalo Law Review: (none / 0) (#8)
    by oldpro on Thu Jul 02, 2009 at 06:57:23 PM EST
    "...The issue between authority and liberty is not between a right and a wrong
    - that never presents a dilemma. The dilemma is because the conflict is between two rights, each in its
    own way important. Taney in the light of his duties was right, and Lincoln in the light of his duty was right.
    And if logic supports Taney, history vindicates Lincoln.
    It is customary to tell students how urgently these great issues challenge them, and how soon
    they will have to face the greatest challenge of history. I forbear such extravagances. The problem of
    liberty and authority ahead are slight in comparison with those of the 1770s or the 1860s. We shall
    blunder and dispute, and decide and overrule decisions. And the common sense of the American people
    will preserve us from all extremes which would destroy our heritage."

    Oh my.  "The common sense of the American people" is unlikely to be reliable with the propaganda mechanisms now available to powerseekers.  Having 'elected' "W" twice, I take little comfort in the idea of 'faith in the American people.'

    It's a thoughtful exploration though, of law and liberty during times of stress and war.


    just microchip all these guys (none / 0) (#7)
    by Dadler on Thu Jul 02, 2009 at 06:49:57 PM EST
    and let them go.  follow them with drones and specially trained insects.  use their senses to test for nuclear residue in the air.  let's get creative here, people.

    seriously, there is a weird vibe to any discussion of the most "scary" of these detainees.  because there is, imo, a palpable irrationality about them, that almost rises to the level of fearing one of them might, in fact, be a supernatural being, capable of putting together a nuclear bomb within a week of their release.

    I find myself agreeing (none / 0) (#14)
    by Militarytracy on Fri Jul 03, 2009 at 08:30:09 AM EST
    a bit with you.  And what we need in this war is intel...very good intel and the infrastructure that supports getting that.