A brief attempt to frame the questions for Ben and others on the issue of preventive detention:
I think Deborah is absolutely right to insist upon distinguishing the GTMO problem from everything else. Most of the GTMO detainees have been incarcerated for more than six years. Finally, they are receiving a serious opportunity to contest their detentions in the D.C. habeas proceedings, and we should allow those proceedings to run their course before offering any statutory fixes. The GTMO regime was designed primarily for interrogation purposes, rather than for the sort of incapacitation that is the focus of Ben’s book. That explains the fairly indiscriminate collection of prisoners, based on sketchy evidence, and the manner in which the detainees have been treated there. (Imagine how different GTMO, or an equivalent U.S.-based facility, would look if incapacitation were the principal aim — it’d probably resemble the U.S.’s historical POW facilities, housing (primarily) detainees about whom we have more certainty of dangerousness, and in humane conditions.) If Ben’s book and the Parhat example are any indication, in many of the GTMO cases the government probably will not be able to demonstrate that the detainees are among those whose detention Congress has authorized — particularly if the habeas courts begin to use a detention standard similar to that articulated by Judge Wilkonson last week in al-Marri. And, as I argued a few days after Boumediene was decided, the habeas proceedings will provide almost all of the procedural fixes that Ben proposes.
Accordingly, any statute to be considered in 2009 (and Ben agrees that Congress and the new President should wait until then) should be focused not so much on the GTMO detainees, but instead on (i) the thousands of detainees we are holding elsewhere, such as at Bagram; and (ii) future detainees….