Obama Law

The Case for a New Detention Law
An email conversation about the news of the day.
Dec. 9 2008 11:49 AM

Obama Law

VIEW ALL ENTRIES

Dear Emily, et al.—

Great questions. Here's the first part of some tentative answers, focusing especially on the questions that you directed to Dahlia and me. My answers are tentative in the sense that many turn on factual matters that the Obama team should explore before locking itself into prefabricated answers:

Advertisement

New detention law? I lean toward thinking that Obama should propose such a law. But to do so right at the start might be premature. Instead, I have advocated that he appoint a blue ribbon, bipartisan commission to study all available information about the 250 or so detainees who remain at Guantanamo and to issue detailed findings that would be, as much as possible, public.

It seems likely that, as the military claims, the facts will show that a great many of these men are both very dangerous and impossible to convict of any serious crime in ordinary civilian or military courts. Why impossible? In many cases because the strongest evidence would be inadmissible based on ordinary rules of evidence such as the hearsay rule and based on the requirement that even the most sensitive classified evidence that is shown to the jury also be shown to defense counsel and the defendant. Also, based on rules against use of statements made in coercive interrogations, without Miranda warnings, and the like. In addition, some prisoners who have committed no known or provable crimes have made it clear in statements at Guantanamo that they want to kill as many Americans as they can if and when released.

What to do with dangerous prisoners who cannot be prosecuted? Bush's system of military commissions has failed so badly for so long that it does not provide a credible solution. The best alternative—as ideologically diverse experts including Neal Katyal, Jack Goldsmith, Andy McCarthy, and Ben Wittes have argued—might be a new national-security court staffed by Article III federal judges, on the model of the FISA court. If properly designed by the administration and Congress, such a court could provide fair and credible opportunities for detainees to show that they should be released without compromising national-security secrets.

Would this be preventive detention? Yes, it would. Can we do it without violating the Constitution? Yes, we can.

More soon on your other questions.

Best,
Stuart

Click here to read the next entry.

TODAY IN SLATE

War Stories

The Right Target

Why Obama’s airstrikes against ISIS may be more effective than people expect.

The One National Holiday Republicans Hope You Forget

It’s Legal for Obama to Bomb Syria Because He Says It Is

I Stand With Emma Watson on Women’s Rights

Even though I know I’m going to get flak for it.

Should You Recline Your Seat? Two Economists Weigh In.

Doublex

It Is Very, Very Stupid to Compare Hope Solo to Ray Rice

Or, why it is very, very stupid to compare Hope Solo to Ray Rice.

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

Why Is This Mother in Prison for Helping Her Daughter Get an Abortion?

It’s Fine to Use Facebook to Serve People With Legal Papers, Court Rules

  News & Politics
Foreigners
Sept. 23 2014 6:40 PM Coalition of the Presentable Don’t believe the official version. Meet America’s real allies in the fight against ISIS.
  Business
Moneybox
Sept. 23 2014 2:08 PM Home Depot’s Former Lead Security Engineer Had a Legacy of Sabotage
  Life
Outward
Sept. 23 2014 1:57 PM Would a Second Sarkozy Presidency End Marriage Equality in France?
  Double X
The XX Factor
Sept. 23 2014 2:32 PM Politico Asks: Why Is Gabby Giffords So “Ruthless” on Gun Control?
  Slate Plus
Political Gabfest
Sept. 23 2014 3:04 PM Chicago Gabfest How to get your tickets before anyone else.
  Arts
Brow Beat
Sept. 23 2014 8:38 PM “No One in This World” Is One of Kutiman’s Best, Most Impressive Songs
  Technology
Future Tense
Sept. 23 2014 5:36 PM This Climate Change Poem Moved World Leaders to Tears Today
  Health & Science
Science
Sept. 23 2014 4:33 PM Who Deserves Those 4 Inches of Airplane Seat Space? An investigation into the economics of reclining.
  Sports
Sports Nut
Sept. 23 2014 7:27 PM You’re Fired, Roger Goodell If the commissioner gets the ax, the NFL would still need a better justice system. What would that look like?