What Should a 2009 Detention Statute Look Like?

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.

As for these other categories of detainees, I’ve explained why I don’t think a new statute need be nearly as comprehensive as Ben suggests. But I think it’s important to emphasize that Ben and I agree that Congress should provide two important additional protections to detainees, on top of those that habeas already guarantees:

First, Ben would provide detainees with many of the procedural guarantees of habeas in the military’s administrative process in the first instance, before the question even gets before a habeas court. In other words, Ben would have Congress establish a new CSRT process that actually provides robust, fair, and impartial review of detention decisions — what he calls “something serious upfront.”

Second, in cases where the habeas court denies a detainee’s petition, Ben would have Congress institute a system that guarantees regular reconsideration, by a federal court, of the legality of continued detention, to ensure that the detentions are humane and remain necessary. According to Ben in Slate, “a reasonable legislative scheme would have the court’s jurisdiction persist as long as the detention itself persists—something that habeas review does not do. [T]he government should have an affirmative obligation to argue periodically for continued detention.”

This is our quite substantial common ground. And our differences pale in comparison. Except, perhaps, for the remaining big question: the substantive standard for detention. It’s still not clear to me that we’re that far apart — that there is a large category of persons who Ben, but not I, thinks can (or should) be preventively detained. We probably should discuss this question separately, after our discussions of GTMO and process. And when we do, I think it would be useful to begin by asking Ben whether he would agree that, at least with respect to aliens arrested outside the United States, Judge Wilkinson’s formulation of the substantive standard is something he would endorse — because I suspect that is (roughly) the standard that courts will employ in the habeas cases and elsewhere. (Just noticed Roger’s analogous questions about the precedent of the important Israeli Supreme Court decision — and I agree that that very important decision, along with Parhat and al-Marri, is now the appropriate starting point for future discussions about the substantive standard for detention.)  (The standards for U.S. citizens and residents, and aliens detained in the U.S., might need to be different — but that’s a much, much smaller class of detainees.)