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Preventive detention, with caveats

Holding detainees without trial is repugnant to American due process and should be reserved for extreme cases.

June 15, 2010

Even as it plans civilian trials for some detainees at Guantanamo Bay, the Obama administration has reserved the right to hold others without trial under the Authorization for Use of Military Force approved by Congress after 9/11. As President Obama put it: "I am not going to release individuals who endanger the American people."




The report cites four grounds for holding a detainee without trial: a significant organizational role in Al Qaeda, the Taliban or "associated forces"; advanced training or combat experience with forces targeted by the Authorization for Use of Military Force; an expression by the prisoner of an intention to "reengage in extremist activity upon release"; and a history of association with extremist activity or "strong ties (either directly or through family members) to extremist organizations."

Of these criteria, only the first and second strike us as even vaguely justified by the fact that Congress has approved the equivalent of a declaration of war against Al Qaeda and the Taliban. None of them, without further explanation, distinguishes between authentic preventive detention and imprisonment without trial for criminal punishment or political expediency. As the history of Guantanamo demonstrates, there is the possibility of error, exaggeration or mistaken identity. What's more, in a conflict that, unlike past wars, is open-ended, we're concerned that people could end up being held for years, theoretically even for life, under this plan. The task force notes that there will be periodic reviews by the executive branch, but we believe that there must be oversight of detention decisions by an independent body. And the burden should rest on the government to demonstrate that there is a high risk of imminent harm to Americans that the detention is meant to prevent.

The report notes that judicial review is already assured by a 2008 Supreme Court decision holding that Guantanamo inmates have a constitutional right to challenge their confinement by seeking writs of habeas corpus. But the justices didn't provide detailed guidance to lower courts about how to evaluate such claims. As a result, according to a Brookings Institution report, judges "disagree about what the government needs to prove to a court to sign off on a detention, about what evidence it may employ in doing so."

One remedy to that would be legislation providing guidance to the courts — including, perhaps, a new, specialized tribunal that, to the extent possible, would function in public while allowing judges to consider classified information when necessary. Alternatively, the Supreme Court could agree to review a case that would allow it to provide detailed instructions to lower courts about what level of threat justifies detention without trial and what showing the government must make. Either way, this and future administrations must be put on notice that they will be able to detain indefinitely only the "worst of the worst," and only if it's absolutely impossible to prosecute them for past acts. (Those standards should apply not only to inmates now held at Guantanamo but also to detainees captured away from a battlefield in the future.)


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