Social Studies August 2007

The Candidates' Four Detention Camps

Deciding what to do with jihadist operatives is the country's most urgent legal question. But there's little sign that the presidential candidates have given it much thought.

This position is respectable. No one doubts that any system of administrative detention poses a hazard to core civil liberties, and it is at least arguable that the risk of abusive detention outweighs any potential terrorist threat. Respectable, however, is not the same as realistic. Many detainees will be picked up on foreign battlefields where the evidentiary and procedural standards of criminal law will be impossible to meet. It is a plain fact that no sane president of either party is going to release jihadist kingpins because witnesses were unavailable or DNA was improperly preserved.

Between the maximalist and minimalist extremes lie two intermediate positions. One is judicialism, which would basically leave the matter to the courts, with Congress trying to intervene now and then if the courts seem to veer too far one way or another. For the most part, this passive approach of punting to the courts is the same as the status quo.

Former Arkansas Gov. Mike Huckabee and Rep. Duncan Hunter of California, both Republicans, are in this camp. Quoted by a spokeswoman, Huckabee said, "I believe that these issues are best left to our courts." Hunter, according to a spokesman, awaits further court action and is generally satisfied with the current state of affairs. Sen. John McCain, R-Ariz., also believes that next steps should await court action. He, however, is in a category of his own: Having led the enactment of two major laws on the handling of detainees, he has presumably earned the chance to see how his legislation plays out.

In a democracy, asking the courts to make up a whole new branch of law might make sense if elected legislators, otherwise known as Congress, had never been invented. It might also make sense if the courts were good at running the war on jihadism. Courts, however, see only specific cases, often in a random order; they are inexpert at dealing with national security issues and diplomatic trade-offs; and they are internally divided all the way up to the Supreme Court. For all of those reasons, and others, the courts couldn't write a coherent detention law even if they tried, which they won't. Instead, they will create a tangle of legalistic requirements and ambiguities that will do nothing particularly well, except perhaps make work for judges. They are doing a pretty good job of that already.

Angry and unwilling to sit on their hands, restrictionists seek to set some legislated boundaries. They want to limit but not eliminate the president's freedom to seize and hold people as enemy combatants—by giving detainees access to the courts through habeas corpus review; by closing Guantanamo; by narrowing the legal definition of an unlawful enemy combatant; by restricting the practice of "rendering" terrorist suspects to third countries or secret prisons abroad; and so forth. Sens. Joseph Biden of Delaware, Hillary Rodham Clinton of New York, Christopher Dodd of Connecticut, and Barack Obama of Illinois, plus New Mexico Gov. Bill Richardson—all Democrats—favor most or all of these restrictions, in varying permutations.

The restrictionist position appeals to moderate Democrats because it implies that the United States needs some kind of detention system but that the Bush administration has gone too far. What it does not do is solve the problem.

Providing habeas corpus rights to detainees sounds like an answer, but it really just restates the question. Habeas allows detainees to ask a federal court to order their release, but it does not provide rules to guide the court's decision. By itself, calling for habeas is another way of saying, "Let the courts decide."

Boldly for a Democrat, Obama explicitly affirms, through a spokesman, that the U.S. "must retain the right to detain those who can legally be held under the Geneva Conventions for the duration of any conflict." Most of the other restrictionist positions tell the executive branch what it cannot do, without saying what it can do. Through a process of elimination, such restrictions make running a detention regime harder, if not ultimately impossible. Restrictionism might be better than maximalism or some other alternatives. But it doesn't substitute for what no candidate is offering: a coherent reform plan.

That would be a proposal setting forth who is and who is not an enemy combatant, where and for how long and under what conditions such combatants can be held, and what sort of due process they are entitled to. True, reforming detention law is a big job, but no bigger than, say, reforming the U.S. health care system, which the candidates are eager to do. It deserves no less attention.

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Jonathan Rauch is a contributing editor of The Atlantic and National Journal and a senior fellow at the Brookings Institution.

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