Most civil-liberties advocates acknowledge that the government has the authority to detain fighters it captures in an ongoing theater of military combat until the end of hostilities. They maintain however, that terrorist suspects captured outside military combat zones, regardless of whether the U.S. is in an indefinite war with al-Qaeda, aren't appropriate candidates for indefinite military detention. These individuals are criminals. (This is my view as well.)
These groups have criticized the Obama administration's decision to indefinitely detain a so-called fifth category of individuals, who are "too dangerous to release" but whom can't be charged with crimes. Sen. Lindsey Graham is planning to propose legislation that would place the process of indefinite detention under court review. Spencer Ackerman reported that this would be distinct from the McCain-Lieberman proposal, which would basically allow the executive branch to detain anyone they wanted, including American citizens for an indefinite amount of time.
Ben Wittes, the centrist legal scholar with the Brookings Institution who circulated the petition criticizing the smear campaign against Justice Department lawyers who had represented suspected terror detainees, wrote a draft of a similar proposal last year. Wittes argued without endorsing Graham's effort explicitly that since we're going to have indefinite detention anyway, a Graham-like proposal is the only way to ensure that the process is fair.
“Given that we're going to be doing these things and there's a political consensus among anyone who's going to run the executive branch that we're going to be doing this, there should be rules for how we do this thing,” Wittes says.
In an op-ed for The Washington Post last year, Wittes argued that an indefinite-detention proposal that would "involve regular review and ongoing oversight" would give "many more opportunities for error correction and for detainees to convince authorities that they no longer pose a danger that requires their incarceration."
Reached for comment over e-mail, the ACLU's Jonathan Hafetz, who was part of the defense team of Ali Saleh al-Marri, who was held for nearly seven years in a military brig in South Carolina, said the proposal was unconstitutional and a bad idea. "Congress has never before authorized this type of detention scheme -- and it should not do so now," Hafetz says. "Detentions are already subject to Court review via habeas corpus." The government has lost around three-quarters of the habeas cases filed by Guantanamo detainees.
Wittes claims that part of the problems is that the judges currently evaluating the habeas cases of Guantanamo detainees don't have a clear set of rules for how these cases should be handled, leaving them to "wing it, and figure it out for themselves how the rules should be.”
Last summer, the Obama administration seemed poised to enact an indefinite-detention law but didn't. Current Deputy Solicitor General Neal Katyal argued for a "national security court" that would oversee indefinite detention alongside former Bush-era Assistant Attorney General Jack Goldsmith back in 2007.
-- A. Serwer
