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• Friday, June 26, 2009 04:50 PM

  bystander

  Right. The assumption being, now that we have it, it's permanent. We just need to write up the rules for this thing we never should have constructed in the first place.

  Yes, classic. If we must have a "preventive detention" system and we know we will, I think this is the only proposal I could condone. The significant difference is that detention wouldn't be indefinite. Of course, we don't have legislators who can be trusted.

  Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis

  From the Conclusion: The scope of the preventative detention in the age of terrorism has been the subject of great debate among legal scholars. Nevertheless, most scholars agree that critical to the constitutionality and success of any such detention scheme is the incorporation of adequate procedural safeguards. Such safeguards must include, at the very least, strict time limits [meaning not indefinite], clear and objective standards upon which detention is to be imposed, a neutral decision-maker, notice to the detainee of the factual basis for the detention, an immediate hearing and opportunity to rebut the detention evidence, and prompt judicial review. This is best accomplished through a legislative process [not through an executive order] in the manner that the Australian preventative detention scheme was created. At the same time, a just system for preventative detention must recognize the severe and fundamental infringement on individual rights that incarceration for any length of time entails, as the United States Constitution expressly acknowledges.

  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975792&rec=1&srcabs=1055501

  —EJ Read EJ's other letters
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