Preventive detention, with caveats

Even as it plans civilian trials for some detainees at Guantanamo Bay, the Obama administration has reserved the right to hold others without trial under the Authorization for Use of Military Force approved by Congress after 9/11. As President Obama put it: “I am not going to release individuals who endanger the American people.”

Imprisonment without trial violates the most fundamental principles of American due process and can be countenanced only under our traditionally accepted practice of holding enemy combatants as prisoners of war until a cessation of hostilities. Such cases should be exceedingly rare and subject to stringent outside review. The recommendations of an interagency task force convened by Obama that were recently made public fail to meet that standard.

The task force recommends that the administration detain 48 prisoners without trial. And although those inmates have the right to challenge their confinement in federal court, judges lack guidance about whether and on what grounds they should order any prisoner’s release.

The task force’s report confirms the popular assumption that some suspects can’t be put on trial even if they have committed terrorist acts, because evidence was gathered on a battlefield and “was neither garnered nor preserved with an eye toward prosecuting them.” Others, while active in Al Qaeda, couldn’t be tied to specific plots. The report says that the principal obstacles to prosecution are not tainted evidence (presumably obtained by torture) or a desire to protect sources.

The report cites four grounds for holding a detainee without trial: a significant organizational role in Al Qaeda, the Taliban or “associated forces”; advanced training or combat experience with forces targeted by the Authorization for Use of Military Force; an expression by the prisoner of an intention to “reengage in extremist activity upon release”; and a history of association with extremist activity or “strong ties (either directly or through family members) to extremist organizations.”

Of these criteria, only the first and second strike us as even vaguely justified by the fact that Congress has approved the equivalent of a declaration of war against Al Qaeda and the Taliban. None of them, without further explanation, distinguishes between authentic preventive detention and imprisonment without trial for criminal punishment or political expediency. As the history of Guantanamo demonstrates, there is the possibility of error, exaggeration or mistaken identity. What’s more, in a conflict that, unlike past wars, is open-ended, we’re concerned that people could end up being held for years, theoretically even for life, under this plan. The task force notes that there will be periodic reviews by the executive branch, but we believe that there must be oversight of detention decisions by an independent body. And the burden should rest on the government to demonstrate that there is a high risk of imminent harm to Americans that the detention is meant to prevent.

The report notes that judicial review is already assured by a 2008 Supreme Court decision holding that Guantanamo inmates have a constitutional right to challenge their confinement by seeking writs of habeas corpus. But the justices didn’t provide detailed guidance to lower courts about how to evaluate such claims. As a result, according to a Brookings Institution report, judges “disagree about what the government needs to prove to a court to sign off on a detention, about what evidence it may employ in doing so.”

One remedy to that would be legislation providing guidance to the courts — including, perhaps, a new, specialized tribunal that, to the extent possible, would function in public while allowing judges to consider classified information when necessary. Alternatively, the Supreme Court could agree to review a case that would allow it to provide detailed instructions to lower courts about what level of threat justifies detention without trial and what showing the government must make. Either way, this and future administrations must be put on notice that they will be able to detain indefinitely only the “worst of the worst,” and only if it’s absolutely impossible to prosecute them for past acts. (Those standards should apply not only to inmates now held at Guantanamo but also to detainees captured away from a battlefield in the future.)

Obama’s decision to hold some prisoners without trial creates a dilemma for those who oppose preventive detention: Allowing the status quo to continue is unsatisfactory, but action by Congress or the high court to provide judicial review would institutionalize a practice abhorrent to fundamental American principles. We uneasily would choose the second course, but only if the courts subject the executive branch’s decisions to searching and sustained scrutiny.