Preventive Detention

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PREVENTIVE DETENTION….Jane Mayer writes in the New Yorker this week about how the Obama administration plans to handle the enemy combatants currently held at Guantanamo Bay and elsewhere.  Greg Craig, Obama’s White House counsel, says that some disturbing options are being considered:

The Obama Administration has indicated that it hopes to return the majority of the detainees to other countries, or to try them in civilian and military courts. The looming question, however, is whether there is a category of terror suspect whose status precludes such options. It’s unclear whether some home countries can provide fair trials or secure prisons. More important, the high standard of evidence required in U.S. courts—guilt must be proved “beyond a reasonable doubt” — might result in dangerous individuals being set free.

….Depending upon how many such “hard cases” exist, Craig says, the Administration will decide whether new laws, including possibly those enabling some sort of preventive detention, are necessary….“It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law,” Craig said. “Our presumption is that there is no need to create a whole new system. Our system is very capable.” Then again, the idea is not being ruled out, which may be surprising to some constituents, given Obama’s past support for civil liberties and Craig’s own record — in the early nineties, he served as the chairman of the board of the International Human Rights Law Group, an advocacy organization now known as Global Rights.

There are lots of genuinely tough questions here, so I sympathize with Craig’s position, but still: preventive detention?  Is he talking about indefinite preventive detention?  That’s hard to believe, but temporary preventive detention (i.e., holding a prisoner without bail while awaiting trial) is already a standard part of our judicial system — and it’s hard to believe that the government is truly afraid that a judge presented with even minimal evidence of danger and flight risk would allow a terrorism suspect out on bail.

Hopefully I’m just confused here.  In the meantime, though, read the whole thing.  It’s a good summary of where we stand right now.

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