On the knotty question of prolonged or indefinite detentions, is there a middle ground between those who want to codify an expansion of oresidential power and those who believe that existing laws, fully exploited, are sufficient? Into the debate comes Madeline Morris, a former senior Defense Department detainee affairs lawyer. She's circulating a proposal called the Counterterrorism Detention, Treatment and Release Act, which she contends will satisfy constitutional, moral and legal criteria laid out by President Obama.
Morris sides with those who believe that existing criminal statutes are appropriate for most, but not all, terrorism prosecutions. But she is sympathetic to the worry that creating a forward-looking detention framework that does not retroactively address -- or account for -- the detention and disposition of Guantanamo detainees, would be illegitimate and constitutionally troublesome.
Detainees -- those "engaging in armed catastrophic" attacks against the U.S. -- would be held in conditions equal to detention facilities for prisoners of war. (That means, in essence, that they could not be held in supermax facilities.) The appeal of this approach is that it avoids a definitional battle over who gets sent where. Interestingly, Morris locates the detention authority in the judicial branch. Here's how it would work:
Detention proceedings are initiated under the Act by an application made by the Attorney General to a U.S. district court requesting a determination of probable cause to believe that the named individual is a "person engaging in catastrophic armed attack against the United States."
If the court finds probable cause, the named individual is then provisionally detained in the custody of the Attorney General pending a Detention Determination Hearing.
Where an individual is brought into U.S. custody outside the territory of the United States, not in a theater of hostilities, the Act requires that he be promptly: transferred to the custody of his state of nationality or that of the state on whose territory he was taken into custody; or, committed to the custody of the Attorney General for criminal prosecution or for provisional detention in accordance with a probable cause determination and order of provisional detention issued by a district court under the Act. Within a specified number of days from the start of provisional detention, the Attorney General shall file an application for the continued detention of the individual, or release him. After receipt of an application for continued detention, the court is to conduct a Detention Determination Hearing, in which the government bears the burden of proving, by clear and convincing evidence, that the named individual is an individual engaging in catastrophic armed attack against the United States, as defined in the Act. If the court finds that the government has met that burden, it will issue an Order of Detention. If not, it will order the discharge of the individual. (Such discharge does not preclude a subsequent criminal prosecution.
The proposal incorporates twice yearly reviews of each individuals's status. And Morris argues that those potentially subject to indefinite detention must be given access to a rigorous deradicalization program on the theory that, if they are deemed to be rehabilitated, they might one day be able to be released.
The key question is how to legally and appropriately identify the bad actors, and under what legal authority the executive branch can detain those folks outside recognized conflict zones it suspects -- but cannot prove in a court of law -- intend to be hostile. In other words, as national security law expert Ken Gude has written, if the government doesn't need judicially sanctioned legal evidence (or probable cause, or whatever) to detain someone before a review process begins, how does it justify indefinite detention if the president's authority derives from his power to prevent catastrophic attacks? By detaining the person, wouldn't the attack be disrupted, by definition? What's the marginal benefit to holding someone whose catastrophic attack was already prevented? And is such a detention justified by the belief that a bad person will always be bad?