Monday, March 2, 2009

A proposal to limit preventive detention

With the detention center at Guantanamo Bay in Cuba recently in the news, I would like to consider whether a liberal democracy should tolerate preventive detention under any circumstances. Some have called for indefinite detention of a small number of detainees who are putatively too dangerous to release. Jack Cloonan and Sarah Mendelson rejected this approach in their article on closing Guantanamo ( as being inconsistent with the rule of law. Unlimited detention with no judicial oversight is contrary to the writ of habeas corpus ( However, Congress can suspend this writ under limited circumstances. Although it is beyond the scope of this essay to consider the constitutional issues surrounding habeas corpus, I would like to take up a hypothetical example to illustrate what is wrong with some aspects of our current detainee policy and to show how it could be made better. I do not speak as one who is an expert in terrorism, so my example should be taken with that in mind.

Let us assume that there exist terrorist cells, consisting of low-level operatives who will be given information on a need-to-know basis for Al Qaeda or another organization. Suppose that the Justice Department claimed that it needed preventive detention to stop terrorists from committing a particular violent act. Could we fashion rules to grant this power that is well short of violating the principle that a prison has the right to challenge his detention in front of a neutral party? I suggest the following guiding principles.

The rules governing this preventive detention should be written by the Congress as statutes; they must not emanate from the Justice Department itself. The investigators would seek a warrant from a judge or panel of judges based on evidence of an imminent threat that rises to the level of “reasonable suspicion.” The detention should be of limited duration (its purpose is only to disrupt a terrorist operation that had just been set into motion), or if for a longer period of time than (let us say) one week, the detention could be challenged in a second court. Both courts would have to be secret, something along the lines of the FISA court. The detention could not be repeated unless new evidence was offered each time. There could be no interrogation of the detainee, unless a lawyer with security clearance were able to render assistance. Charlie Cassidy and Cassandra Porsch mentioned this idea in the context of special administrative measures in an article in the Georgetown Journal of Legal Ethics (Volume 17, Issue 4, p.681, 2004).

In contrast to the hypothetical situation above, the rules for the monitoring of attorney-client conversations (one of the so-called “special administrative measures”) were generated within the Justice Department and adopted by the Bureau of Prisons without comment. It is worth noting that the Military Commissions Act removed the right of enemy combatants to challenge their detention in courts ( These two examples imply that our present system shortchanges both the legislative and judicial branches of our government, thus bypassing critical checks and balances. The essays of Geoffrey Stone (, the statements of the Coalition to Defend Checks and Balances (part of he bipartisan Constitution Project), and Charlie Savage’s book, Takeover: the Return of the Imperial Presidency,” suggest that the separation of powers, in which all three branches of government play their constitutional roles (, is never more needed than when balancing liberty against security.

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