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,...
I have no idea what you people are talking about. Congress has no intention of standing on the sidelines while the Supreme Court micromanages Guantanamo Bay, as Rep. Lewis Gohmert (R-Tex)'s new H.R. 6615 proves beyond even the smallest shadow of a doubt. Here is the title: To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba...
There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone's indulgence to bunch posts and arguments together. If I'm skipping over important points in doing so, just call me on it and I'll try to circle back. Let me start with...
Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government's capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a...
I suspect that, thanks to Roger's framing and Marty's and Deborah's thoughtful opening salvos, we're not too far from getting to the two big questions with regard to Ben's proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to...
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...
Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats. The Israeli...
