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.
In a speech last month at the National Archives, President Obama opened the door to the possibility that some terrorism detainees will neither be tried nor released.
"If and when we determine the United States must hold individuals to keep them from carrying out an act of war," he said, "we will do so within a system that involves judicial and congressional oversight."
Attorney General Eric Holder was not much more specific last week when he testified before a Senate committee that a preventive detention program "would be some kind of review with regard to the initial determination [that the detainee should be held], and then a periodic review with regard to whether or not that person should continue to be detained."
Although the controversy has been hazy until now, it is about to come into sharp focus.
An Opening For Discussion
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.
"I think very few readers will read it and say, 'This is exactly what we need,' " he says. "I think of it as more of an opening of a discussion than an effort to end the discussion."
Wittes occupies a relatively unique position in national security circles. He has studied and written books on pragmatic approaches to fighting terrorism. Government officials often seek out his views. People admire — and criticize — him from the left and right. This proposal demonstrates why.
Some conservatives say it will turn the battlefield into CSI: Afghanistan, requiring soldiers to collect evidence as they're being shot at. Some liberals say holding people without trial is fundamentally un-American.
"I think most concerns that most people express on the left and right are legitimate concerns," says Wittes. "One problem that I have with the debate over this is that people aren't careful enough to acknowledge that these issues are really hard and that most concerns expressed are legitimate to some degree."
Those concerns lead many to ask why Wittes is pushing for indefinite detention at all. We already have it, he says. Detainees have been held at Guantanamo for years. Thousands more are imprisoned in Afghanistan. The Supreme Court has said the United States can detain some terrorists for the duration of hostilities against al-Qaida and the Taliban. So, Wittes says, "There's no question that we're detaining people outside of the criminal justice system. The question is what the rules are for that detention and who makes those rules."
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.
"That sounds like a pretty draconian thing," Wittes says, "unless you compare it to the current policy."
Under the current policy, people at Bagram Air Base in Afghanistan have been held for years without ever being seen by a judge. Wittes' program has the advantage of early, regular participation from the courts.
The plan has many other details. For example, it would end after three years unless Congress renews it.
Human Rights Concerns
But many human rights groups say they don't need to hear any more details. They believe the very notion of preventive detention flies in the face of American values.
"Once you open the door to that idea of holding people because of presumed dangers, or saying we have reason to believe but no evidence to convict someone of a terrorism crime, then you start to cut away at the very foundation of what our system of justice is based on," says Human Rights First CEO Elisa Massimino.
Despite those concerns, the Obama administration seems to be moving closer to a plan like Wittes'. Administration officials have met with many different people, including Wittes, about preventive detention. But this is the first actual draft legislation. According to several sources outside of government who are familiar with the administration's thinking, this proposal is getting a lot of attention.