Well, we never got as far as interrogation or surveillance, but that's okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to...
I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion. Before sigining off, however, I want to offer a few predictions and related observations about the road ahead. It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at...
I must confess that I've been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben's point in his most recent post -- that detention should be based upon "dangerousness in the context of a showing of some significant relationship with groups against which Congress...
A few final thoughts on detention and Al-Marwallah before we move on to interrogation--a subject on which I'm certain my arguments will provoke no disagreement. ;-) First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification....
Well, Ben, much as I look forward to dining with you to discuss these issues further, I won't take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces...
A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in...
Let me start by saying that I don't think I've substantially narrowed my detention criteria between the book and this discussion--though I am potentially amenable to doing so. The book is written for a general-interest audience and, consequently, at a higher-level of altitude than this discussion is taking place. Precisely to preserve the ability to have this discussion sort of...
Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly--as I propose to do--isn't your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby's excellent work on this subject, that...
I'm tentatively encouraged by Ben's new articulated test for detainability, which is not everything I'd hope for (especially if the "impracticability of criminal trial" prong is read broadly), but begins to bridge the gap. Ben's proposal in his book, however, is much more troubling. My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the...
I'd like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan...
There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take,...
There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of "preventative detention" almost immediately upon taking office on January 20, 2009. Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees,...
