A Provocative Preventative Detention Proposal

The government's debating preventative detention. Two scholars want to help.

I've gotten a copy of the model detention proposal that Brookings' Benjamin Wittes and colleague Colleen Peppard have prepared.   Why is this paper so significant? It represents an effort -- one of the first -- to deal with an acute matter of national interest, and one that is by no means settled from the perspective of the government. And it will be read by the powers that be.  Here's a summary of its main points:  The two propose a model for a  "targeted and highly regulated detention authority " that supplants the authority granted to the president by Congress.  Why is this paper so significant? It repersents an effort to deal with an acute matter of national interest, and one that is by no means settled from the perspective of the government.
The courts will play a key role in the process; it's reasonable to assume that they will "ultimately oversee any such detention system." Wittes and Peppard note that the current pubic focus on the 50 to 100 detainees who may not be triable and who may not be releasable implicates a larger population of detainees, including those held at Bagram Air Force Base and other non-Guantanamo detention sites - as well as Al Qaeda or Taliban fighters who are captured by American authorities in the future.  The authors dimiss proposals for a "national security court" that might dispose of these detainees; as they point out, "[w]e, as a society, have not yet decided on the rules that will govern terrorist detentions. We have not yet decided the substantive standards, procedural elements, or rights of the accused within the processes in question."  (Wittes has written favorably about national security courts before; this paper represents an evolution of his thinking.)  Standards of evidence, triggering mechanisms, conditions of prolonged detention, appeals eligibility -- all these need to be worked out before a court can be constituted.

Right now, there are two established legal regimes for dealing with bad people: criminal trials in the United States and military tribunals under the laws of war (and regulated by the Geneva Convention and subsequent treaties.)  At times, Congress has given the president ad hoc authority.  The two authors propose to formalize a third option for the president: an "upfront" review of the detainee's status subject to stringent rules of evidence and significant oversight; the authors reason that the detention power is grave and therefore should be accompanied by enhanced protections to balance competing national security and liberty interests.  Basically, the executive branch would decide whether a person should be classified as a candidate for prolonged detention. The government would then present its case to the court within 14 days of the determination.  If the court believes that the president has met the burden -- a high burden -- then the government can detain the person for six months, at which point the prisoner's case would be automatically appealed, and the individual authority subject to judicial re-review.

This third court would be "insulated," in the authors' proposal, from the regular federal court system and thus could not -- and would not -- affect precedents and create confusion for those prisoners going through the regular detention / tribunal process.   After a long discussion of how the president ought to add detainees to this special class, the authors propose a three-pronged test that does not depend on vague concepts of "association" or "membership":

The model law authorizes the detention of an individual who is (1) an agent of a foreign power, if (2) that power is one against which Congress has authorized the use of force, and if (3) the actions of the covered individual in his capacity as an agent of the foreign power pose a danger both to any person and to the interests of the United States

To sum up these criteria in a word -- "agency."

My summary does not do justice to the careful and provocative work that Wittes and Peppeard have done, and I need some time to think about their proposal in order to figure out whether it would be (a) workable, (b) politically feasible, (c) something the administration might consider.  I'll leave it to the legal eagles to tell me whether the points of law are properly interpreted.