The Wittes Preventative Detention Proposal

By Marc Ambinder

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.

This article available online at:

http://www.theatlantic.com/politics/archive/2009/06/the-wittes-preventative-detention-proposal/20188/