Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.

The Obama administration said on Wednesday that it will not seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at Guantanamo Bay. While that still upsets many civil libertarians who say the United States never ought to detain anyone indefinitely without charge, it’s at least better than the alternative, which some worried would have been broad new legislation that could have expanded U.S. detention authority beyond what it claims it has now.

Since Sept. 11 terrorist attacks,  the United States has claimed it has the authority to indefinitely detain fighters in the “war on terror” according to the laws of war. Critics counter that the fight against terrorism isn’t a “war” that allows the United States to take prisoners, and of course when it came time to granting detainees prisoners-of-war status, the Bush administration adamantly refused.

When President Obama said in his speech at the National Archives in June that he still believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, he sparked a vigorous debate about just what kind of “preventive detention” scheme the president can or should embrace.

The American Civil Liberties Union, among others, insisted that any sort of “indefinite detention,” whether by legislation or executive order, would simply be extending the unconstitutional Bush policy that Obama criticized before he took office. But some lawyers, worried that taking a hard line would lead to the adoption of a broad new detention policy that would extend beyond the detainees at Guantanamo, urged the administration to stick to the detention authorization that it already has under the laws of war.

That camp apparently won the battle.  On Wednesday, the administration said it will continue to hold the Guantanamo detainees without charge or trial based on the power it claims pursuant to the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against al-Qaeda and the Taliban.

On Thursday, the ACLU registered its disappointment.

“While the Obama administration is wise not to seek legislation or issue an executive order that would formalize an unconstitutional system of indefinite detention, it remains deeply troubling that the administration continues to maintain a de facto system in which detainees are held indefinitely without charge or trial,” said Anthony Romero, Executive Director of the ACLU, in a statement.

“Locking people up indefinitely without charge or trial violates our most fundamental laws and values. … It is important to keep in mind that even with today’s development, what we are left with is a continuation of the misguided detention policy of the Bush administration.”

Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

US Attorney General Michael Mukasey (WDCPix)

It’s been exactly one year since then-Attorney General Michael Mukasey proposed in a speech at the American Enterprise Institute that Congress pass legislation declaring a new, expanded war with al-Qaeda and the Taliban — thereby granting the president the authority to detain indefinitely members of those groups anywhere in the world where they’re found.

That proposal from a lame-duck Attorney General never got very far with the Democratic-controlled Congress. But a year later, the country is still debating that exact same detention authority. And news reports suggest that President Obama may seek precisely the same sort of authority that Mukasey was talking about.

Illustration by: Matt Mahurin

Although the Detainee Policy Task Force yesterday announced it was taking a six-month extension on its deadline to formulate the policy, reports from National Public Radio, The Washington Post and Politico have all quoted anonymous Obama administration officials saying the president intends to create or continue some sort of indefinite detention system for suspected terrorists associated with al-Qaeda or the Taliban, whether through new legislation or mere “consultation” with Congress.

“There is no intent in the administration to rely on anything other than congressional authority,” one senior administration official reportedly told The Washington Post.

Whether that authority would take the form of an entirely new system of administrative detention outside the authority of the laws of war, as some have proposed, or whether it would rely either on the existing Authorization for the Use of Military Force, or seek a new authorization, is unclear.  The anonymous officials aren’t explaining (or don’t yet know) how the administration intends to go about solidifying its legal authority to indefinitely detain suspects without charge or trial arrested around the world.

The question arises because the Supreme Court, in Hamdi v. Rumsfeld, affirmed that the president does have authority to detain combatants arrested on the battlefield in a conventional war, which the United States was engaged in with Afghanistan at the time. Since then, lower federal courts have ruled that the United States can detain combatants who are members of al-Qaeda or the Taliban. But it’s not clear if that authority would reach countries where there is no active combat — or if the authority described in the Hamdi decision  at some point runs out.

In attempting to answer that question a year ago today, Michael Mukasey, in a speech delivered to the American Enterprise Institute, said that Congress should:

acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans—soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Today, Obama — or at least members of his administration — appear to want something very similar.

“It’s hard to see how they would end up writing anything much different from what Mukasey proposed a year ago,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington. “And that was dead on arrival.” Although the issue was raised at congressional hearings, proposed legislation never received enough support even to get to the floor for a vote.

Last summer, Anders described the idea on the ACLU’s blog as “a multi-part plan to violate the Constitution” that would “give a president worldwide power to declare anyone a terrorist and hold the person forever – without ever charging anyone with a crime.”

Although it’s possible that Obama would have more sway with Congress than Bush did, the leaders of the judiciary committees in both the House and Senate have publicly opposed a preventive detention plan that would detain suspected terrorists that the president deems “dangerous” without charge or trial; the chairmen of the House and Senate Armed Services Committees have likewise expressed reluctance.

So could Obama really get new authorization for preventive detention? Or will he try to rely on the old one, and issue an executive order or presidential memorandum clarifying (or extending) its scope? One reason he might want to seek new authorization is that, as David Kris, assistant attorney general for the Justice Department’s National Security Division,  recently testified before the Senate Armed Services Committee, the authority the Supreme Court acknowledged in Hamdi could eventually “run out.” After all, the laws of war only authorize detention for the duration of active hostilities.

Anders said that in his conversations with lawmakers on the Hill, he hasn’t heard of any proposed legislation being circulated. “No one I’ve come across so far has seen or heard anything from the administration about an indefinite detention proposal,” he said.

In an e-mail, Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, cautioned that new legislation could lead to far broader authority for indefinite detention than even Obama envisions.

“For me, the answer to this question decides the whole ball game — if they go to Congress, what will inevitably emerge is a broad preventive detention system regardless of what the Obama administration wants. If they rely on AUMF authority, then it can be much more narrow.”

The administration and congressional changes to the commissions are “cosmetic,” Vandeveld told me, as they’ll still provide for hearsay evidence (albeit in restrained form) and a measure of coerced testimony. The commissions depend on a empaneling  military officials  who have “no special expertise in the law to determine what weight to give that evidence,” he says. “In my mind, that’s too heavy a burden.”

But Vandeveld doesn’t stop with the military commissions. He rejects the entire administration contention that there’s a true class of detainees who are too dangerous for release and also can’t be successfully prosecuted, the backbone of the argument for preventive detention. “Much of the estimation of the future dangerousness of certain detainees at Guantanamo is based upon the very hearsay that should be condemned,” Vandeveld says. “Oftentimes, it’s based on statements made by the detainees themselves. It defies logic to say on one hand that a detainee intent on being jihadist, inflicting harm on America, and acknowledges his past misdeeds and then you can’t subject him to trial and convict him. Of course you can. … Someone like that could be court martialed.”

Nor was Vandeveld impressed by Pentagon General Counsel Jeh Johnson’s suggestion today that the administration could conceivably detain people acquitted of terrorism charges. “If someone is acquitted, then, as we do today, we should release him,” Vandeveld says. “I know the president has said he does not want release someone who’s a threat to the American people. As a prosecutor of 20 years, I can tell you that happens every day in the U.S. — the recidivism rate is huge. It’s worse than people want to think about. But it’s worth the risks that one has to take if one believes in democracy and the rule of law. There are two systems already in place [for dealing with dangerous people]: military courts martial under the [Uniformed Code of Military Justice] and Article-3 [federal civilian] courts. There’s no reason to lower our standards to obtain convictions would not obtain otherwise.”

Vandeveld is scheduled to testify tomorrow morning about military commissions to a House Judiciary subcommittee. It should be worth watching.

As David Remes, executive director of Appeal for Justice who represents about a dozen Yemeni detainees at Guantanamo, explained to me earlier today, “If you look at the fine print of the Obama refined definition, you’ll see it’s limited to this litigation,” referring to the habeas cases. In the meantime, Obama has set up a team of people — a detainee policy task force — to study and consider and decide what U.S. detention policy should be going forward. “So it could be different than what DOJ has argued in the habeas cases,” says Remes.

But will it be?

National security and civil liberties experts like Kate Martin, director of the Center for National Security Studies, and Ken Gude at the Center for American Progress are among the many lawyers urging a far narrower interpretation that would be limited to the right to detain fighters picked up on the battlefield.

Of course, there’s the question of how to define the battlefield.  But Martin and Gude, in the memo they sent to the detainee policy task force, point out one way that seems to make perfect sense: rely on the military’s definition of the scope of its combat operations.

“As two retired JAG officers have explained, when the military is operating with rules of engagement pursuant to the law of war, such circumstance defines the ‘battlefield’ and the extent of combatant detention authority,” they write, citing a paper by Geoffrey S. Corn and Eric Talbot Jensen.

“There’s a clear line,” says Martin. “When the military is authorized to shoot to kill, they have detention authority. But otherwise you have to try them.”

Remes points out that you still have the problem of defining who’s a fighter, an issue which comes up in all the habeas cases. To some extent that will have to rest with the military, and then with whatever proceedings it affords detainees to challenge their detention. (If they’re in the United States or at Guantanamo Bay, of course, detainees also have the right to challenge their detention in federal court.)

These limits still may not satisfy some civil and human rights experts, as Spencer points out. They make a strong argument that the laws of war apply to conflicts between states, not conflicts between a state and a terrorist organization. As Gabor Rona, international legal director of Human Rights First, put it to me recently, the Geneva Conventions “presumed that where it’s a non-state armed group you’re fighting against it will be domestic law that applies, because those people are all criminals. Unlike in an international armed conflict, the privilege of belligerency doesn’t apply.”

There may never be a meeting of the minds between the Rona and Martin, or what I’ll call the strict civil libertarians and the pragmatists. But given that the federal courts so far have accepted that the United States is engaged in a “war” of some sort with certain terrorist groups and seem willing to define at least some of those fighters as “enemy combatants” (or whatever the Obama administration is calling them now), it’s hard to imagine that Obama — not one to give up authority easily — will completely walk away from that paradigm in the future.

What seems the more pressing question now is whether the administration will continue to push for the extremely broad view of its war powers that it’s advocated in Guantanamo habeas cases — the same definition that allowed the Bush administration to snatch and indefinitely detain without charge anyone suspected of supporting al-Qaeda or the Taliban anywhere in the world — or if they’ll be willing to restrict their powers to a more logical and limited reading of international law.

Alternatively, will advocates for a whole new system of preventive detention — such as Neal Katyal, now Deputy Solicitor General; Robert Chesney, a law professor at Wake Forest University spending the summer on the Detainee Policy Task Force; Jack Goldsmith at Harvard; and Benjamin Wittes at Brookings — persuade the administration that it needs Congress to pass new legislation to move beyond the laws of war, so that it does have authority to indefinitely detain without charge terror suspects seized anywhere in the world?

I know that’s not what the strict civil libertarians are advocating. But I wonder if, by refusing to recognize the applicability of the laws of war at all, they’re actually (though unintentionally) encouraging a far more radical solution.

I write to correct any misimpression that the views expressed by Kate Martin reflect a consensus position among the human rights and civil libertarian community regarding U.S. detention policy in Afghanistan. That position is shaky on the law, far-removed from the facts on the ground, and, perhaps more important, it embraces policy positions that undermine human rights and long-term U.S. security.

The rest of Rona’s email is after the jump:

First, contrary to popular belief, the laws of war do not categorically provide for the detention of all fighters in all armed conflicts. If that is indeed what Hamdi means, then Hamdi may be the final word in U.S. law, but it is an erroneous interpretation of the laws of war. The better reading of Hamdi — the reading that comports with international law — is that it construes the AUMF [September 2001 Authorization to Use Military Force] to provide detention authority to U.S. forces consistent with that contained in the laws of war.

The laws of war do provide for the detention of all combatants and all civilians who pose a serious security risk in wars between states, known under the laws of war as international armed conflict. The Geneva Conventions specify this detention authority because privileged belligerents/combatants (namely, fighters who are not subject to criminal law for there lawful acts of belligerency) could not otherwise be detained; and because civilians are being detained by external authorities in such wars, and those authorities may have no power to invoke local laws and their attendant procedures and institutions, like courts.

But in armed conflict that is not between two states, namely non-international armed conflict, the Geneva Conventions do not articulate detention authority. Neither do they prohibit it. This is logical because the persons to be detained have no “privilege of belligerency.” They are mere criminals under domestic law and may be detained as such. For this reason, the designation “unlawful enemy combatant,” created by the Bush administration to skirt U.S. legal obligations toward detainees, should be retired in connection with members of non-state armed groups. Under the laws of war, such persons do not enjoy “combatant” privileges of belligerency and the right to PoW status upon capture. (The appellation “unlawful” is also wrong because, contrary to another popular belief, unprivileged belligerency is not a violation of the laws of war as long as the targets are legitimate military objectives. It may well be a violation of domestic law, but all that is a separate issue.)

But what about when State A (USA) detains people in a non-international armed conflict in State B (Afghanistan)? Actually, unless State B is a failed state unable to muster its own legal architecture – as long as it is a sovereign entity – it is that State that has the obligation to legalize detention, whether pursuant to criminal law, or a preventive detention scheme. In either case, the State’s law must articulate grounds for detention and procedures that comport with international standards for due process.

At present, US detention in Afghanistan is not tethered, as it must be, to domestic legal authority. Having recently returned from a mission to Afghanistan to study US detention policies and practices, we (Human Rights First) have recommended to the President’s Detention Policy Task Force that the US should work with Afghan authorities to regularize detention under Afghan law.

Second, and if you reject everything above, the distinction between battlefield and non-battlefield as a talisman for detention authority is itself a bit facile. There is surely a war going on in Afghanistan. And some would therefore say that the entire country is grounds for detention under their (mistaken) reading of the laws of war. But the vast majority of detainees are not captured shooting or laying improvised explosive devices. They are more often taken in night raids on their houses conducted pursuant to often questionable intelligence. These are precisely the circumstances for which a habeas-like proceeding is necessary to avoid the universally prohibited ill that is arbitrary detention.

Third, even if I’m totally wrong on all my legal interpretations, there’s the question of what is good and right. Our military leaders understand that in a counterinsurgency conflict, the support of the local population is crucial. No one I know disagrees with the conclusion of our generals that in Afghanistan, we cannot kill and detain our way to victory and that we will instead, have to rely on practices that hew to internationally recognized norms of human rights law – whether legally mandated or not. I think they are mandated. Others think they are not. Actually, it doesn’t matter because adhering to them is simply the right and effective thing to do.

As I note in my story, Gude and Kate Martin, Director of the Center for National Security Studies, have both written in support of the president’s right to detain combatants under the laws of war. But that support raises two key questions: who is a combatant and what is a war?

Congress, in passing the Authorization for the Use of Military Force (AUMF) in 2001, allowed the president to wage war “against those responsible for the recent attacks launched against the United States” — namely, al-Qaeda and the Taliban, when they ran Afghanistan. But since no one walks around wearing al-Qaeda or Taliban uniforms, who’s actually a member and therefore detainable remains a major point of contention.

Similarly, the laws of war allow for the detention of a combatant captured on the battlefield until the conflict is over. But whether the battlefield is the specific zone where U.S. forces are stationed in Afghanistan or Iraq, or an area as broad as anywhere in the world that terrorists who hate the United States may be found, is hotly debated. Many of the lawyers I cite in my piece today, such as Martin, Gude and the eleven lawyers who signed the letter to President Obama imploring him not to authorize some new form of preventive detention, argue for the geographically more limited definition of detention.

As Gude wrote in The Guardian: “During this ongoing military conflict, the US clearly possess the authority to detain enemy fighters captured on the battlefield or fleeing from it.”

And as the military and defense lawyers write in their letter to Obama, the laws of war “do not authorize the detention of people for terrorist activities far from the battlefield, which are not acts of war but criminal acts.”

The Bush administration interpreted the laws of war far more expansively than that, however, seizing and detaining for years suspected terrorist sympathizers as far away as Thailand, Bosnia and Illinois. Few, if any, civil libertarians would approve of such an expansive reading of the president’s wartime detention authority.

Yet those who advocate new detention legislation, such as Benjamin Wittes at Brookings, think that distinction makes little sense. And that’s why they want an entirely new system that is not constrained by the laws of war.

Because in Wittes’s view, the laws of war allow you to detain, say, a not-very-important Taliban foot soldier, but not a leading al-Qaeda agent who’s found in Pakistan, far from the zone of conflict.

“Say you raid a safe-house in Pakistan,” he said yesterday. “You capture Abu Zubaydah. There are 10 people there with him, but nowhere near the battlefield. But they’re close enough to a very senior al-Qaeda member, and involved with building live bombs.” The government ought to be able to detain them all, says Wittes, yet the laws of war don’t necessarily allow that.

“My basic point is that the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

That question is sure to spark more controversy in the months to come.

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Ever since President Obama said in his speech at the National Archives that he believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, legal and national security experts have been vigorously debating just what kind of “preventive detention” scheme the president can or should embrace.

As TWI’s Spencer Ackerman wrote on Wednesday, many civil liberties groups adamantly oppose the idea of “preventive” or “indefinite” detention at all. Since Obama made his pronouncement in May, representatives from Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center for Justice, the Constitution Project and many others have argued strenuously against the idea.

Illustration by: Matt Mahurin

So when the Washington Post and ProPublica reported on Friday that the Obama administration is considering issuing an executive order setting out a long-term preventive detention authority, and that some civil liberties groups had actually encouraged such an order, many of those groups were stunned.

“Our position is that there is no category of individual who can’t be prosecuted,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project. “To say the president can order indefinite detention by executive order, that’s just what Bush did for the last eight years.”

Even conservative scholars have been arguing against the idea since the Post reported that the administration was considering an executive order. As former Bush administration lawyer and Harvard Law Professor Jack Goldsmith wrote with Brookings Institution scholar Benjamin Wittes in an op-ed in the Washington Post on Monday: “Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

Wittes and Goldsmith instead argue that any preventive, indefinite detention scheme should be debated, authorized and spelled out clearly by Congress. Otherwise, they say, it will face opposition and modification by the courts, which will ultimately undermine the president’s detention power, as happened during the Bush administration. “Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war,” they write. “Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.” An act of Congress, then, would be a way of enhancing, rather than limiting, the executive power of indefinite detention.

And that’s where the debate now lies — between those that believe existing systems of detention under the laws of war and criminal prosecution are sufficient to handle current terrorist threats, and those who claim that the so-called “age of terrorism” demands a broader authority that Congress must create.

Although staunch civil libertarians oppose preventive detention altogether, many left-leaning lawyers would prefer an executive order issued by President Obama clarifying his authority to detain prisoners under the laws of war to an entirely new, broader system of preventive detention created by Congress, as Goldsmith and Wittes propose.

Perhaps most prominently, an influential group of military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have — with modifications, if necessary.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which has not been released publicly but was obtained by TWI. The letter is signed by eleven prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to President Obama; and Thomas Wilner, a corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” says the letter, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

Although the letter doesn’t explicitly call for an executive order, that’s one obvious way such “modifications” could be made. Ken Gude at the Center for American Progress made a similar argument recently, supporting preventive detention of fighters captured in a combat zone during a military conflict, on the Center’s web site and in The Guardian. And in a memo written with Kate Martin, director of the Center for National Security Studies, the authors write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail on Wednesday, Gude said that although he didn’t specifically propose an executive order to the administration, he supports the idea and opposes new legislation. Martin has said the same thing.

Even Georgetown law professor David Cole, ordinarily a staunch civil libertarian, has argued that the administration has such detention authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.”

Of course, there’s plenty of disagreement about who is an “enemy fighter” and how to define the “war on terror.”

The Supreme Court in Hamdi v. Rumsfeld affirmed that the executive can detain enemy fighters during wartime, but that case pertained directly only to the detention of Taliban fighters while the United States was at war with the Afghan government. Since then, the Bush administration and now the Obama administration has argued for much broader authority than that. In habeas corpus cases for Guantanamo detainees, the Obama Justice Department has argued it has “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001″; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or [al-Qaeda] forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Different judges have interpreted that authority slightly differently, and some haven’t accepted that the president’s authority reaches those providing “substantial support” to terrorist groups, but they all agree that the President has the authority to detain indefinitely those fighting a war with the United States.

An executive order, some argue, would further clarify the Obama administration’s position — and, potentially, limit its authority going forward.

Their primary aim, however, seems to be to prevent legislation that codifies a new, broader system of preventive detention based on “dangerousness”, as Goldsmith, Wittes, and Deputy Solicitor General Neal Katyal (before he was in the Obama administration) have promoted.

Wittes, in particular, a Brookings Institution scholar, last week proposed, with his colleague Colleen Peppard, model legislation that would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war. In his op-ed co-authored with Wittes on Monday, Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under George W. Bush, appeared to endorse such a plan. (Goldsmith declined to be interviewed for this article.) Last Friday, NPR’s Ari Shapiro reported that the proposal is “already being discussed in the Obama administration.”

The idea is to create a system that allows the government to detain an individual who officials believe is dangerous and acting as an agent of an organization that is fighting the United States, yet against whom it does not have enough evidence, or the right kind of evidence, that would support a criminal prosecution. Instead of having to prove guilt “by a reasonable doubt,” which is the standard in criminal law, the government would need only prove “dangerousness” by a “preponderance of the evidence,” which is the standard of proof in civil cases. Evidence provided by intelligence officers based on hearsay, for example, would be admissible, even though it would not be allowed in a criminal proceeding. Coerced evidence, however, would not be admissible.

“It’s a lot of probablilistic human intelligence stuff that people use every day, including to target and even kill people, that U.S. courts choose not to admit,” Wittes said on Wednesday. “There are all sorts of people who you wouldn’t have a problem going to court and saying, ‘we can show this guy is dangerous. But if you force us to make a criminal case, we can’t do it. Either we don’t have enough evidence, or the proof we have, a lot of it won’t be admissible.’ ”

Civil liberties and criminal defense lawyers argue strenuously that such evidence is unreliable and therefore shouldn’t be used to deny a suspect their liberty, potentially forever. In Wittes’ proposal, the government could detain a suspect for up to 14 days without providing him a right to a lawyer or to challenge his detention. After that, the government would have to justify continued detention to a judge every six months. Wittes compares this sort of detention authority to the government’s authority to detain criminal defendants before trial, some illegal aliens, and mentally ill people who a court has deemed a danger to himself or others.

“The concept of ‘dangerousness’ is inherently somewhat speculative,” Wittes admitted. “By its nature it’s based on future activity. Imagined future activity,” he added. But “we do manage the concept of dangerousness” in these other situations. “It’s not ideal. You’d like a moral certainty as to whether or not someone is going to do something scary. As a practical matter you can’t do that.”

Gude and Martin, in their memo sent to the Obama administration’s Detainee Policy Task Force, “strongly oppose” such a plan. “While we strongly support the effort to prevent such individuals from engaging in future terrorist activities, experience demonstrates that sufficient intelligence and law enforcement tools exist to meet real national security requirements and disable such persons. Legislating a new legal framework for detaining such individuals would be unprecedented and unjustifiable as an application of the law of war. To the contrary, it would blur the important line between criminal and military spheres and undo decades of effort by the United States to encourage other countries to cabin properly the realm of military vis a vis civilian authority.”

David Golove, a Constitutional law professor at New York University, similarly calls the Wittes plan “extraordinarily problematic and dangerous.”

“One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he said. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” The Wittes proposal “treats that whole problem incredibly cavalierly.” The wartime detention model, by contrast, has “deep historical roots,” he said. And detention of the the mentally ill or the accused in pretrial detention are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”

To Wittes and some others, however, the terrorist attacks of September 11 demand just such a new exception. A preventive detention system “is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats,” he writes with Peppard in their paper, Designing Detention: A Model Law for Terrorist Incapacitation.

Whether such a system would be constitutional is another matter, and one that Wittes does not directly address in his proposal. “All of these issues are up for grabs in the courts, and both sides of the administrative detention debate can point to recent signals by the Supreme Court in Guantanamo cases to support their claims,” said Matthew Waxman, a law professor at Columbia University whose work Wittes cites for support in his paper.

It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.