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• Friday, June 26, 2009 03:11 PM

  OT: slightly...

  Preventive Detention Proposal #1

  NPR: Proposal Offers Specifics On Preventive Detention

  Ever since President Obama proposed holding terrorism detainees without trial, the debate over preventive detention has been growing. Now, NPR has the first look at a detailed legislative proposal to hold detainees indefinitely. The document comes from two experts outside of government, and it is already being discussed in the Obama administration....

  Benjamin Wittes of the Brookings Institution and his co-author, Colleen Peppard, plan to release a proposed law as early as Friday. It works through many of the difficult questions the Obama administration has skirted until now. Wittes acknowledges it will be controversial....

  Wittes' proposal has complicated restrictions on whom the detention system would apply to. U.S. citizens would not be part of the system. The president could detain only "an agent of a foreign power" against whom Congress has authorized the use of military force. The detainee would also have to be "a danger both to any person and to the interests of the United States."

  In the first phase of detention, the president could pick up anyone who fits those criteria and hold the person for 14 days. If the president wanted to hold the person longer, a judge would have to approve.

  The detainee would have an attorney and hearsay evidence could be used against him, though not evidence obtained through coercion.

  If a judge is persuaded that the detainee is a threat, the president could hold the detainee for six months. At the end of six months, the president could go back to the court and repeat the process.

  Effectively, Wittes concedes, someone could be locked up forever as long as a court approves of the detention twice a year.

  http://www.npr.org/templates/story/story.php?storyId=105940019

  The paper is available here:

  Designing Detention: A Model Law for Terrorist Incapacitation
  Legal Architecture for the War on Terror, Terrorism, Justice and Law, Guantánamo, Executive Branch

  Introduction: http://www.brookings.edu/papers/2009/0626_detention_wittes.aspx

  Full Paper: http://www.brookings.edu/~/media/Files/rc/papers/2009/0626_detention_wittes/0626_detention_wittes.pdf

  —EJ Read EJ's other letters
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