I think John Bellinger asks a pretty important question about indefinite detention in his op-ed supporting a new Authorization to Use Military Force:
Civil liberties groups' opposition to a new detention law is unrealistic and shortsighted. The Obama administration has made clear that it intends to hold 50 to 100 Guantanamo detainees potentially indefinitely without criminal trial, a number that may grow given that a federal jury in New York acquitted Ahmed Ghailani this month of 284 of the 285 charges against him. While every detainee has the right to bring a habeas corpus challenge to his continued detention, once a federal judge determines that an individual has been properly detained under the AUMF (as judges have already done in 19 cases), the detainee may have no further legal right to challenge his detention for the rest of his life.
I think a new AUMF, passed by the incoming Congress, would be a disaster. But I think Bellinger is offering a fair criticism of civil-liberties groups opposed to an indefinite-detention law -- what about those detainees whose habeas petitions fail? What civil-liberties groups would like to see is an end to preventive detention outside the battlefield period, but if that isn't going to happen, what's the alternative? Without some kind of framework that defines how long someone can be held, their options have been exhausted. In this political context, with Republicans promising to hold Obama accountable for any future Gitmo recidivists regardless of when they were released and who released them, that's likely to mean a very long time.
A while ago, David Cole offered an idea for how such a system might work and envisioned it applying to a small subset of detainees subject to military detention, whose ongoing confinement would be reviewed by the courts. Supporters of some kind of indefinite detention framework, such as Ben Wittes, have argued in the past that since the U.S. is currently engaging indefinite detention anyway, it's important to provide some kind of oversight. The flip side, though, is that the executive rarely deploys its new powers with the kind of restraint Wittes or Cole are proposing.
Marcy Wheeler has a far more critical take, but I'll just say this: I think there are some compelling reasons for bringing indefinite detention, if it has to exist, under court review. But that, in the context of an AUMF that grants the government a whole lot of other new powers, isn't really worth it. Now if this new AUMF had some kind of sunset provision along the lines of what Eli Lake suggested a while ago, that might make things a little more interesting.
