Legal Commentary

Once More On Preventive Detention

By Big Tent Democrat

This post from Liza Goitein of the Brennan Center for Justice guestblogged at Balkinization is a very good explanatory of why the issue is such a difficult one in current times. The key graf for me:

The U.S. thus has authority under domestic law to apply the same detention rule that the law of war establishes in international armed conflict. The problem with this arrangement is that the rules that apply in international armed conflict are a poor fit for the war we’re actually fighting. Wars against other nations differ from wars against irregular forces, and those differences are at least intuitively understood by the American public and the rest of the world.

Addressing arguments such as the ones I have made (and here), Goitein writes:

Some have argued that the answer is something in between the preventive detention model for prisoners of war in international armed conflict (i.e., detention for the duration of hostilities without any individualized assessment of dangerousness) and no preventive detention at all: a more constrained system of preventive detention, in which the government must prove future dangerousness in each case and the detention is subject to frequent review. Indeed, such a system would be at least partially consistent with the law of war, which authorizes the detention of civilians in international armed conflict under just such constraints. (I say “partially” because international armed conflicts, as noted above, are less likely to last forever.) But I’m not sure it would be consistent with our own concept of due process—specifically, the idea that people who are capable of controlling their own actions should not be subject to potentially endless detention based on predictions of “future dangerousness.” And that’s one reason why the debate on preventive detention is very far from over.

A very interesting piece and one that I am currently pondering.

Speaking for me only

Full post as published by TalkLeft on July 02, 2009 (boomark / email).