The Wittes Preventative Detention Proposal

The influential constitutional and national security thinker Benjamin Wittes has found a solution to the conundrum that is vexing the Obama administration's task force on detention policy: how does the United States simultaneously provide dangerous, non-triable detainees with due process rights and keep them, well, detained until (if ever) rehabilitated. 

In essence, Wittes proposes to give the president authority to detain terrorists or enemy combatants for, first, 14 days, and then, with the approval of a specially-designated judge, for six months; every six months, the administration would have to re-apply for the authority. As Wittes concedes to NPR's Ari Shapiro, people could be locked up indefinitely -- but only with the concurrence of a separate branch of government. 


My question -- Congress has more constitutional authority over the disposition of detainees than the judiciary, and the administration, even having shifted the legal underpinning for the Guantanamo Detainees to Congress's 2002 Afghanistan force authorization, has never specifically denied itself the right to detain people under its own authority. This compromise would give the judiciary veto power over an action that I believe the administration believes to be a function that the constitution designed to be split between the executive and legislative branches. 

When Wittes releases his formal proposal, I'll pass it along. My guess is that it will be weekend reading for a bevy of senior administration officials. 
Presented by

Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

How a Psychedelic Masterpiece Is Made

A short documentary about Bruce Riley, an artist who paints abstract wonders with poured resin

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register with Disqus.

Please note that The Atlantic's account system is separate from our commenting system. To log in or register with The Atlantic, use the Sign In button at the top of every page.

blog comments powered by Disqus

Video

How a Psychedelic Masterpiece Is Made

A short documentary about Bruce Riley, an artist who paints abstract wonders with poured resin

Videos

Why Is Google Making Skin?

Hidden away on Google’s campus, doctors are changing the way people think about health.

Video

How to Build a Tornado

A Canadian inventor believes his tornado machine could solve the world's energy crisis.

Video

A New York City Minute, Frozen in Time

This short film takes you on a whirling tour of the Big Apple

Video

What Happened to the Milky Way?

Light pollution has taken away our ability to see the stars. Can we save the night sky?

More in Politics

Just In