Indefinite Detention

Honest Partisan has posted on this PBS Online NewsHour page about indefinite detentions.

The Bush administration is exploring ways to hold suspected terrorists for a lifetime, even if they haven't been convicted by a court. According to Sunday's Washington Post, administration officials are preparing plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries. Pentagon Spokesman Bryan Whitman told the Post, "Since the global war on terror is a long-term effort it makes sense for us to be looking at solutions for long-term problems."

The rest of the page includes a debate between John Yoo and David Cole (for and against respectively.) Both make some good points. Now, we do not know the content of these plans, so specific criticisms are difficult. However, I certainly am not happy with the basic idea of someone being held indefinitely without a trial. Nonetheless, it is a problem, that is difficult to deal with and in truth we do not have very good legal precedent on how this should be dealt with. First off, it is important to understand that many of these people have not committed crimes in the traditional sense. For example, while it is illegal for a U.S. citizen to go train in a terrorist camp, their is certainly no U.S. law that makes it illegal for an Afghani (or Saudi) to do so. While you might could in some cases get them on a conspiracy charge, I believe that conspiracy usually has to be pretty definite and it also seems to me that jurisdiction problems could occur. These are examples why people feel that a law enforcement approach to terrorism will probably not work. This is paralleled in classical wars, and these sort of problems are what the Geneva Convention strove to sort out, at least for conflicts between nation states. By this I mean that we do not consider it a crime for an enemy at war to plot the deaths of Americans however, we also do not consider it wrong to detain captured enemy soldiers until the end of a conflict. In other words, indefinitely. At the same time, we have expected standards that we expect and enemy to maintain, failure of which constitutes war crimes and we have certain obligations to enemy soldiers. Given that terrorists are non-state actors they are obviously not party to the Geneva Conventions. They neither adhere to the standards and cannot expect the same rights. Further complicating the matter is the fact that because they are non-state actors, and deliberately shadowy organizations, the end of the conflict will be difficult to determine. There will be no clear point at which the war has ended, either against terrorism in general or a given organization in particular. It seems obvious to me that we need a vigorous debate that deals with these realities and comes to a solution that makes sense. Unfortunately, that is not what has occurred. Any attempt by the Bush administration to bring up the issue is met by loud cries about tramping on international norms and violating civil liberties. For the administrations part, they have in this instance been too cloaked in secrecy and too willing to go to far, or at the very least go quickly to edge of too far as some of the abuse stories coming from Guantanamo have made clear. In addition they have been far too quick to assert, and too slow to justify executive privilege. Neither side has stalwartly served the national interest in this. Here is my quick ideas for what might be a reasonable solution. First, have a clear time limit in which the names of detained individuals must be published. Six months or a year seem reasonable, as by that time I would expect that any intelligence gained would have largely been exploited or expired. If a rare individual was still needed to be held in secrecy I would think that a Federal panel of judges could provide an addition period of being held in secret. Second, I would think that all detainees deserve a periodic review of their status. This would not be a trial in the classic sense, but the case should be review in some manner. I think that having a bi-annual review period would be a ball park figure. I would have this review conducted by 3 Federal Judges. Basically, I would have the United States submit to each of the judges the reason it felt that this person should be detained. The detainee would submit their reasons as to why they should not be held, why they are no longer a threat (or that they never were if that is their contention.) additionally, family and friends of the detained should be allowed to submit to the reviewing body any evidence they feel is relevant. The three judges chosen by lot for each case, would independently review the documents and decide whether the person should be detained or released by majority vote.