NPR’s report this morning that the Brookings Institution’s Benjamin Wittes has proposed what’s expected to be a highly influential plan for “preventive detention” — which could lock up “dangerous” terror suspects potentially forever without charge or trial — gives even more urgency to the question that Spencer raised here more than a month ago.
Will the administration be more swayed by an author of books about fighting terrorism than by its own deputy attorney general at the Office of Legal Counsel, Marty Lederman? The choice is stark, and if NPR’s Ari Shapiro is correct that Wittes is planning to reveal proposed legislation on the matter today, and that he has the ear of the Obama administration, then it may ultimately come down to whose view the administration credits more.
Wittes has no formal legal training and has proposed a potentially unconstitutional system of indefinite detention of terror suspects without trial; Lederman is an esteemed constitutional law professor at Georgetown University with eight years of prior experience advising the executive branch from the Justice Department — and he has previously expressed serious concerns about preventive detention.
As Spencer pointed out, before his appointment to the Office of Legal Counsel in the Obama administration, Lederman, in an online colloquy with Wittes, specifically denounced the idea of preventive detention based on the president’s determination of who is dangerous.
“’Dangerousness,’ as such — particularly dangerousness as evidenced primarily by one’s ‘deeply held beliefs’ — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial,” he wrote in Opinio Juris. “Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.” He continued that
Wittes may have a very “pragmatic approach to fighting terrorism,” as NPR describes it. (He’s also in the past proposed a system of “national security courts” that would suspend some of the usual criminal justice procedures — which sounds a lot like the new Obama military commissions proposal.) But it’s worth recalling that we’re in this situation to begin with because the Bush administration, dominated by non-lawyers, had insufficient respect for constitutional parameters.
This situation may be partly due to the lack of leadership in the OLC: Republicans have stalled the confirmation of Dawn Johnsen, President Obama’s nominee to head the office, for months now. That may be giving outsiders more say in the administration’s plans than they would ordinarily have.
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