Daphne Eviatar has been doing some great work on the debate over preventive detention that is currently unfolding across the center and the left (there's little apprehension about such a scheme on the right), and she clarifies an important point about preventive detention here:
Congress, in passing the Authorization for the Use of Military Force (AUMF) in 2001, allowed the president to wage war “against those responsible for the recent attacks launched against the United States” — namely, al-Qaeda and the Taliban, when they ran Afghanistan. But since no one walks around wearing al-Qaeda or Taliban uniforms, who's actually a member and therefore detainable remains a major point of contention.
Similarly, the laws of war allow for the detention of a combatant captured on the battlefield until the conflict is over. But whether the battlefield is the specific zone where U.S. forces are stationed in Afghanistan or Iraq, or an area as broad as anywhere in the world that terrorists who hate the United States may be found, is hotly debated. Many of the lawyers I cite in my piece today, such as Martin, Gude and the eleven lawyers who signed the letter to President Obama imploring him not to authorize some new form of preventive detention, argue for the geographically more limited definition of detention.
I want to stress this point--no one, not even the ACLU, is arguing that the military doesn't have the authority to detain combatants captured in an active combat zone for the duration of hostilities. The battle is over whether or not the "combat zone" or battlefield is in fact the entire planet, something that, as Eviatar notes, many liberals object to as problematic and unconstitutional.
At the same time, our complete departure from a law-and-order approach to terrorism during the Bush administration meant that we weren't building cases against terrorist detainees that could hold up in criminal court, which is part of the reason (other than, you know, torture) why the Obama administration has been left with the so-called "fifth category" of detainees who "can't" be tried or released.
For that reason, Ken Gude explained to me yesterday in an email, he might be able to support some limited form of "preventive detention" that applies only to those detainees who were captured previously, rather than an entire new legal structure that would ensure the practice of preventive detention going forward.
"[I]f the policy draws a circle around a dozen or so Guantanamo detainees in continued military detention but expressly bars military detention for future non-zone of combat captures, its not perfect, but its close enough for me to support it," Gude said. "Importantly, there would be no permanent statutory preventive detention regime and no national security courts, both complete disasters and far worse than this alternative."
A secondary question to this whole debate then, is whether or not preventive detention is something the administration would be authorizing for future captures or simply the problematic cases we already have.
-- A. Serwer
