Maybe Sonia Sotomayor was wrong. In the absence of a clear preventive detention policy, Federal District Courts have been hashing one out, case by case, wrote Chisun Lee in The New York Times yesterday:
A close examination of the decisions shows that some of the fears about sending terrorism cases to civilian courts have not been realized. The judges haven't been particularly hard on the government, holding it to a low standard of proof: If more than half the evidence tips in the government's favor, then the detainee stays put — a far lower bar than “beyond a reasonable doubt.” The judges have also admitted hearsay evidence, and they've sealed courtrooms to protect government secrecy.
Yet despite these allowances, the government has not fared well. Twenty-six detainees have won their lawsuits, known as habeas petitions, while five have lost. So far, the Obama administration has filed just one appeal.
Here's the problem for civil libertarians arguing that such a policy is unconstitutional: While in individual cases, the government has been completely routed, the courts haven't dismissed the entire premise of indefinite detention outright; they've just been hashing out appropriate standards of evidence, what level of "support" is required to justify detention, how much and what kind of hearsay is reliable, and in some cases, when detaining an individual is no longer justified. The government hasn't won every case -- in fact, as Lee notes, they've lost most of them.
Lee writes that government fears about using intelligence as evidence haven't been realized -- but advocates for preventive detention would argue that the worst fears of civil libertarians haven't come true either -- that the courts haven't been blindly accepting the government's word on such matters, as proved by the number of Habeas cases they've lost. At this point, supporters of preventive detention would argue that the policy is already in place -- which is why those who oppose it should instead push for a clearer policy that forces the executive branch to say, justify its detention of particular individuals at regular intervals, as David Cole and Ben Wittes are proposing -- so that the courts aren't just making it up as they go along.
-- A. Serwer
