Kate Martin, director of the Center for National Security Studies, read my piece today and emailed over a couple of thoughts about the current debate over preventive detention. (Martin attended the June 9 meeting of the administration’s detention policy task force that I reported on.) She makes the solid point — insufficiently distinguished in my piece, truth be told — that the real controversy is about detainees who aren’t collected on the battlefields of Afghanistan, but rather, say, the streets of Milan.
The debate over so-called “preventive detention” has obscured the real issues facing the administration. The laws of war have always allowed the military to detain fighters seized on the battlefield, indefinitely without charge until the end of hostilities. The Supreme Court’s Hamdi decision in 2004 approved such traditional law of war detention for fighters seized in Afghanistan. Some such fighters are now detained in Guantanamo (where they are entitled to habeas) and some are detained in Afghanistan. US forces are still engaged in combat in Afghanistan and now in the border region of Pakistan and will be for some indefinite period. I have no doubt that the Obama administration will continue to claim the authority to “preventively” detain fighters seized on the battlefields of Afghanistan or the mountains of Pakistan. No additional authority from Congress is necessary for them to do so and we and other civil libertarians for many years have recognized that such traditional law of war detentions without charge are perfectly proper.
The issue that has yet to be resolved by the Obama administration is whether they will continue the Bush administration’s claim of authority to pick up suspected terrorists far from any zone of active hostilities and hold them without criminal charge but with some form of ersatz due process. The [Jack] Goldsmith/[Benjamin] Wittes etc. faction has long been urging a new statute to allow detentions of suspected terrorists without any criminal trials based on secret evidence from intelligence agencies. I take the Washington Post article that the administration may not endorse legislation as a potentially positive sign that this pernicious idea may be rejected.
If that happens, we will have much to rejoice about. At the same time, the Obama administration will still have to deal with the so-called “legacy” cases; individuals who should never have been picked up under the laws of war, who are now in Guantanamo (and a handful in Bagram) and who in order to continue to be detained, should immediately be charged with criminal offenses.
Recall that Martin told me on Friday that she was a civil-libertarian defender of using an executive order as a way of forestalling an over-broad legislative proposal for preventive detentions.
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