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

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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:

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

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