Let's Not Allow a Fiat to Undermine the Bill of Rights

The Bush preventive detention system has been implemented with little regard for the law

To understand the Bush administration's preference for military detention over criminal prosecution—and the dangers of its approach—compare the case of American Taliban John Walker Lindh with those of Jose Padilla, the suspected dirty-bomb-plotter who was arrested after flying into Chicago; and Yasser Esam Hamdi, the Louisiana-born Saudi Arabian captured in Afghanistan.

Lindh will probably spend 17 years in federal prison after pleading guilty to bearing arms for the Taliban. That's pretty harsh, but it's a lot less than the life sentence Attorney General John D. Ashcroft had sought. The government had to drop its more serious charges, including conspiracy to murder Americans, because it lacked proof. Meanwhile, the government is free to incarcerate Padilla and Hamdi—both U.S. citizens, neither charged with any crime—in military brigs for as long as it wants, without having to prove anything to anyone. At least, that is the law according to Ashcroft, for anybody the military has labeled an "enemy combatant." Military detention, a laBush, means never having to prove anything. And all proceedings can be secret. Had Lindh been taken along that route, we might never have heard about the weaknesses in the government's evidence or the coercive aspects of his interrogation. He could have disappeared into a cell and received no semblance of due process.

The Bush military-detention regime is part of a broader system of "preventive detention"—incarceration of people who are neither convicted nor charged with any crime but who are perceived as dangerous—that the administration has been cobbling together. This system represents the sharpest departure since September 11 from centuries of Anglo-American jurisprudence, and it is the most worrisome flirtation with police-statism.

Even the conservative U.S. Court of Appeals for the 4th Circuit raised an eyebrow at the administration's "sweeping proposition ... that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." The July 12 ruling suggested that the military has the power to detain enemy combatants and stressed that judges should be deferential to military judgments. But the court brushed aside as "premature" the administration's assertion that the court must dismiss a petition to release Hamdi without hearing evidence, because courts "may not second-guess" the military's basis for branding him (or anyone) an enemy combatant.

The administration's overreaching should not obscure the fact that the case for some kind of preventive detention has never been as strong as now. Al Qaeda's capacity to inflict carnage dwarfs any previous domestic security threat. Its "sleeper" agents are trained to avoid suspicion, so the careful ones cannot be arrested on criminal charges until it is too late. And their lust for martyrdom renders criminal punishment ineffective as a deterrent.

Without preventive detention, the government would have no plausible legal basis for detaining Padilla and Hamdi, no matter how dangerous they might be. It would have had no plausible basis for detaining any of the September 11 hijackers if it had suspected them of being linked to Al Qaeda before they struck. Nor could it legally have detained the so-called "20th hijacker," Zacarias Moussaoui—who was suspected of terrorist intent-had he not overstayed his visa. Nor, for that matter, could it hold at Guantanamo Bay more than 500 noncitizens captured in Afghanistan.

What should the government do when it is convinced of a suspect's terrorist intent but lacks admissible evidence of any crime? Or when a trial would blow vital intelligence secrets? Or when ambiguous evidence makes it a toss-up whether a suspect is harmless or a threat? There are only four options: Let the suspect go about his business unwatched; assign agents to tail him; prosecute him by stretching the definition of "criminal conspiracy" so far as to make it almost a thought-crime; or incarcerate him through preventive detention.

History shows that preventive detention is prone to abuse. We should be concerned that starting down that road could undermine the Bill of Rights and infect the entire criminal justice system. But these dangers can be controlled by wise legislation.

"No civilized nation confronting serious danger has ever relied exclusively on criminal convictions for past offenses. Every country has introduced, by one means or another, a system of preventive or administrative detention for persons who are thought to be dangerous but who might not be convictable under the conventional criminal law." So writes Alan Dershowitz of Harvard Law School, a passionate civil libertarian. And while the indiscriminate detention of 110,000 Japanese-Americans during World War II is almost universally condemned today, the confinement of thousands of German and Italian aliens—based on individualized investigations and hearings to separate the loyal from the disloyal—has attracted relatively little criticism.

The Bush preventive detention system has been implemented with little regard for the law, the rights of many detainees who turned out to be innocent, or international opinion. It began with Ashcroft's roundup of more than 1,100 noncitizens last fall, ostensibly for immigration violations, for crimes, and as material witnesses. This when-in-doubt-detain approach effectively reversed the presumption of innocence, in the hope of disrupting any planned follow-up attacks. It may have succeeded in this vital objective. But the legal and moral bases for holding hundreds of apparently harmless detainees, in conditions of unprecedented secrecy, seemed less and less plausible as weeks and months went by. Those classed as material witnesses, for example, were held far longer than necessary to secure their testimony. That was preventive detention in disguise. Worse, the administration treated many (if not most) of the mostly harmless detainees shabbily, and some abusively.

The Guantanamo detentions rest on legal doctrines allowing detention of enemy combatants until hostilities have ended. But the administration has violated at least the spirit of the 1949 Geneva Conventions by refusing to create a fair, credible process for determining which of these men are in fact enemy combatants.

It's past time for Congress to authorize and circumscribe a regime of temporary preventive detention, with strong safeguards against abuse, for suspected international terrorists. It should mandate that even people captured on or near foreign battlefields be given the chance to contest their "enemy-combatant" designations at hearings before military tribunals.

For suspects arrested in this country, Congress should authorize preventive detention without criminal charges if, and only if, the attorney general certifies that he has reasonable grounds to believe that 1) the suspect is a member of an international terrorist group or conspiracy; 2) his release would endanger public safety; and 3) prosecution is not a viable option, either because he has committed no crime or because the evidence is inadmissible or too sensitive for a public trial. The procedural safeguards should include these:

• The government may detain and interrogate such suspects without access to legal counsel for no more than 20 days.

• During this initial period, before detainees have had judicial hearings, they must be held in comfortable, nonpunitive quarters. Those not criminally charged within 20 days should be promptly compensated for lost wages and other economic costs, plus a reasonable additional sum for each day in detention.

• After 20 days, the government must release each uncharged detainee unless it can win a six-month extension by convincingly establishing the above three numbered criteria for detention, at a hearing before a special federal court. The detainee should have the rights to consult counsel, to receive any known exculpatory evidence, to contest the government's claims, and to call witnesses. All evidence probative to a reasonable person should be considered, even if inadmissible in a criminal trial. Proceedings should be public except for properly classified evidence.

• After the six months, and after each succeeding six months, the government must release each uncharged detainee unless it can justify continued detention at a similar hearing, based on the same three criteria and any new evidence or relevant facts. All detainees must be released within five years unless criminally charged.

These may not be the best possible rules. Perhaps 20 days is too much time to interrogate detainees without lawyers. Perhaps the most dangerous detainees should not be released even after five years. Perhaps we should minimize the need for preventive detention by stretching the rules of evidence and the concept of conspiracy enough to prosecute suspected sleeper agents. The important point is that a free people should resolve such questions not by executive fiat, but by law.