There was a huge newsdump last week, with The Washington Post reporting that President Obama intends to circumvent Congress and reassert indefinite detention authority by executive order. At the same time, the Brookings Institution released a paper by Ben Wittes and Colleen A. Peppard giving the possible outlines of a preventive detention statute. Although I didn't post about it, I initially assumed that the administration's move would be along the lines of what Wittes is proposing.
That isn't the case. I interviewed Wittes at length this weekend for a feature I'm doing for the print edition, and I had a chance to look over the whole proposal. Wittes told me personally that he thought Obama re-asserting--as Bush did--the inherent authority to detain terrorists suspects indefinitely would be "a disaster."
The Wittes proposal is not likely to make any civil libertarians happy. But unlike the administration's move--if the Post story is accurate--it does propose some meaningful constraints on the indefinite detention power, which up till now we've seen being used arbitrarily except where the courts intervene. The Wittes proposal would set up a FISA-like system, where terrorist suspects could be detained for 14 days without court oversight, but their cases would be subject to judicial review every six months afterward to determine if the suspect should remain detained, according to a "three pronged test." The individual would have to be: "(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." The president would also have to submit a list of groups to Congress every few months that it wants covered by the AUMF, and whose members can be subject to preventive detention. The evidence threshold for detaining someone would be lower than that used in criminal trials. There's more to the proposal, but I won't try to explain it all in one blog post.
Don't read this post as an endorsement. If you're against indefinite detention in principle, the Wittes proposal will be unacceptable. But it's very different from the powers the administration would allegedly be asserting, in that it installs some checks from the other branches of government.
-- A. Serwer