On the knotty question of prolonged or indefinite detentions, is there a middle ground between those who want to codify an expansion of oresidential power and those who believe that existing laws, fully exploited, are sufficient? Into the debate comes Madeline Morris, a former senior Defense Department detainee affairs lawyer. She's circulating a proposal called the Counterterrorism Detention, Treatment and Release Act, which she contends will satisfy constitutional, moral and legal criteria laid out by President Obama.
Detention proceedings are initiated under the Act by an application made by the Attorney General to a U.S. district court requesting a determination of probable cause to believe that the named individual is a "person engaging in catastrophic armed attack against the United States."
If the court finds probable cause, the named individual is then provisionally detained in the custody of the Attorney General pending a Detention Determination Hearing.
Where an individual is brought into U.S. custody outside the territory of the United States, not in a theater of hostilities, the Act requires that he be promptly: transferred to the custody of his state of nationality or that of the state on whose territory he was taken into custody; or, committed to the custody of the Attorney General for criminal prosecution or for provisional detention in accordance with a probable cause determination and order of provisional detention issued by a district court under the Act. Within a specified number of days from the start of provisional detention, the Attorney General shall file an application for the continued detention of the individual, or release him. After receipt of an application for continued detention, the court is to conduct a Detention Determination Hearing, in which the government bears the burden of proving, by clear and convincing evidence, that the named individual is an individual engaging in catastrophic armed attack against the United States, as defined in the Act. If the court finds that the government has met that burden, it will issue an Order of Detention. If not, it will order the discharge of the individual. (Such discharge does not preclude a subsequent criminal prosecution.