Politics

The Candidates' Four Detention Camps

What will the next president do about war on terror prisoners?

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If, as he so often points out, President Bush is a post-9/11 president, what the country sorely needs in 2009 is a post-post-9/11 president. That would be a chief executive who understands what Bush has not: The war on global jihadism is too important to be run as a permanent military emergency. It needs a sustainable, legislated legal architecture.

As Corine Hegland's cover story in National Journal makes vividly clear, Guantanamo is just the beginning. For years to come, the United States is going to be hunting and capturing jihadist operatives on insurgent fronts around the world. Some of these people will be too dangerous to release but cannot be charged as ordinary criminals. What to do with them is the country's most urgent legal question.

Between now and next year's election, there is an approximately 3.27 percent chance that Bush and the Democratic Congress will join forces to resolve this problem, which leaves an approximately 96.73 percent chance that the next president will inherit it. So what do the presidential candidates propose to do about preventive detention?

My colleague Alexander Burns queried all of the announced candidates. Three, all Republicans, did not respond: Sen. Sam Brownback of Kansas, former Massachusetts Gov. Mitt Romney, and Rep. Tom Tancredo of Colorado. Most of the others gave vague or incomplete responses, often raising more questions than they answered.

Still, with a generous dollop of reasonable inference, I managed to sort the candidates' positions into four broad schools. Call them maximalist, minimalist, judicialist, and restrictionist.

Maximalists think that President Bush basically has it right. They believe that the president can use his military authority to detain terrorist suspects with little judicial or congressional oversight. Former Wisconsin Gov. Tommy Thompson, a Republican, seems to be in this camp, although conditionally: According to a spokesman, he favors holding detainees "as long as the United States sees them as a credible threat," but under streamlined review procedures.

Ed Crane, president of the libertarian Cato Institute, reports asking former New York City Mayor Rudy Giuliani whether the president has the power to arrest U.S. citizens on U.S. soil and hold them without court review. According to Crane, Giuliani replied that he would want to use this authority infrequently—implying that the president has such authority to use.

Asked about Crane's account of her boss's view, a Giuliani spokeswoman said, "That sounds about right." Requests for elaboration met with no response.

Crane says he asked Romney the same question at a meeting of the Club for Growth, a conservative group. Romney, reports NationalReview.com blogger Ramesh Ponnuru, told Crane "he would want to hear the pros and cons from smart lawyers before he made up his mind," an account that Crane confirms. Romney has also said publicly that the Guantanamo Bay detention facility should be doubled in size because inmates "don't get the access to lawyers that they get when they're on our soil." His campaign did not respond to requests for comment, but Romney at least sounds like a maximalist—albeit one who has not given a moment's serious thought to the most important legal question of the day.

That the maximalist position should be cavalierly propounded and thinly defended is not surprising, because the position is cavalier and indefensible. The notion that the chief executive can clap anyone in prison forever with only nominal court review was one the Founders had something to say about, in a document called the Declaration of Independence. In any case, maximalism has already crumbled in court.

Minimalists oppose long-term preventive detention. They believe that if the government cannot file criminal charges, detainees should be released or deported. Former Democratic Sen. John Edwards of North Carolina seems to be in this camp, saying (according to a spokeswoman) that Guantanamo detainees should be tried either in the civilian judicial system or in military courts under the Uniform Code of Military Justice. A spokesman for former Democratic Sen. Mike Gravel of Alaska agreed with a recent court decision holding that a detainee must be tried in civilian court or released. Liberal Rep. Dennis Kucinich, D-Ohio, and libertarian Rep. Ron Paul, R-Texas, likewise oppose preventive detention.

This position is respectable. No one doubts that any system of administrative detention poses a hazard to core civil liberties, and it is at least arguable that the risk of abusive detention outweighs any potential terrorist threat. Respectable, however, is not the same as realistic. Many detainees will be picked up on foreign battlefields where the evidentiary and procedural standards of criminal law will be impossible to meet. It is a plain fact that no sane president of either party is going to release jihadist kingpins because witnesses were unavailable or DNA was improperly preserved.

Between the maximalist and minimalist extremes lie two intermediate positions. One is judicialism, which would basically leave the matter to the courts, with Congress trying to intervene now and then if the courts seem to veer too far one way or another. For the most part, this passive approach of punting to the courts is the same as the status quo.

Former Arkansas Gov. Mike Huckabee and Rep. Duncan Hunter of California, both Republicans, are in this camp. Quoted by a spokeswoman, Huckabee said, "I believe that these issues are best left to our courts." Hunter, according to a spokesman, awaits further court action and is generally satisfied with the current state of affairs. Sen. John McCain, R-Ariz., also believes that next steps should await court action. He, however, is in a category of his own: Having led the enactment of two major laws on the handling of detainees, he has presumably earned the chance to see how his legislation plays out.

In a democracy, asking the courts to make up a whole new branch of law might make sense if elected legislators, otherwise known as Congress, had never been invented. It might also make sense if the courts were good at running the war on jihadism. Courts, however, see only specific cases, often in a random order; they are inexpert at dealing with national security issues and diplomatic trade-offs; and they are internally divided all the way up to the Supreme Court. For all of those reasons, and others, the courts couldn't write a coherent detention law even if they tried, which they won't. Instead, they will create a tangle of legalistic requirements and ambiguities that will do nothing particularly well, except perhaps make work for judges. They are doing a pretty good job of that already.

Angry and unwilling to sit on their hands, restrictionists seek to set some legislated boundaries. They want to limit but not eliminate the president's freedom to seize and hold people as enemy combatants—by giving detainees access to the courts through habeas corpus review; by closing Guantanamo; by narrowing the legal definition of an unlawful enemy combatant; by restricting the practice of "rendering" terrorist suspects to third countries or secret prisons abroad; and so forth. Sens. Joseph Biden of Delaware, Hillary Rodham Clinton of New York, Christopher Dodd of Connecticut, and Barack Obama of Illinois, plus New Mexico Gov. Bill Richardson—all Democrats—favor most or all of these restrictions, in varying permutations.

The restrictionist position appeals to moderate Democrats because it implies that the United States needs some kind of detention system but that the Bush administration has gone too far. What it does not do is solve the problem.

Providing habeas corpus rights to detainees sounds like an answer, but it really just restates the question. Habeas allows detainees to ask a federal court to order their release, but it does not provide rules to guide the court's decision. By itself, calling for habeas is another way of saying, "Let the courts decide."

Boldly for a Democrat, Obama explicitly affirms, through a spokesman, that the U.S. "must retain the right to detain those who can legally be held under the Geneva Conventions for the duration of any conflict." Most of the other restrictionist positions tell the executive branch what it cannot do, without saying what it can do. Through a process of elimination, such restrictions make running a detention regime harder, if not ultimately impossible. Restrictionism might be better than maximalism or some other alternatives. But it doesn't substitute for what no candidate is offering: a coherent reform plan.

That would be a proposal setting forth who is and who is not an enemy combatant, where and for how long and under what conditions such combatants can be held, and what sort of due process they are entitled to. True, reforming detention law is a big job, but no bigger than, say, reforming the U.S. health care system, which the candidates are eager to do. It deserves no less attention.

© Copyright 2007 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.

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  1. No worries, Bush will leave his Gestapo Homeland Security Department in place for the next leader to take the reigns.

  2. No worries, Bush will leave his Gestapo Homeland Security Department in place for the next leader to take the reigns.

  3. No worries, Bush will leave his Gestapo Homeland Security Department in place for the next leader to take the reigns.

    Damnit, close tags!

    What I was going to say is, my last year of college my university started offering a “Homeland Security” major. The only people who took it were the basketball team and people who were failing out of other majors. Doesn’t that make you feel safer?

  4. Cesar,

    Actually, it does! The last thing I want is a focused, competant fed spying on me!

  5. Kohlrabi–

    Point taken!

  6. Cesar and Kohlrabi,

    I don’t know if you’ve seen these, but last year I started seeing a bunch of mysterious white minivans popping up, with the “Homeland Security Department” official seal on the side.

    I’m sure it’s been mentioned on here before (link it if you know it!), but this reminded me for some reason.

  7. last year I started seeing a bunch of mysterious white minivans popping up, with the “Homeland Security Department” official seal on the side.

    Great … now we’re gonna have paranoid people obsessing about both black helicopters and white minivans.

  8. Great … now we’re gonna have paranoid people obsessing about both black helicopters and white minivans.

    What if the helicopters transform into the minivans? Get Alex Jones on the phone, STAT!

  9. If someone is declared an enemy combatant, they should get Geneva Convention protections. If they are not declared an enemy combatant, they should get due process through the judicial system.

    President Bush has asserted the right to hold “enemy combatants” but deny them Geneva Convention protections. That is the attitude of a tyrant.

  10. William Kristol is worrying about this so you don’t have to.

  11. jh | August 13, 2007, 5:15pm | #

    last year I started seeing a bunch of mysterious white minivans popping up, with the “Homeland Security Department” official seal on the side.

    Great … now we’re gonna have paranoid people obsessing about both black helicopters and white minivans.

    I’ve played this game. If I recal correctly, it wall a plot by Mr. Burns(again).

  12. The fog of secrecy makes it hard to say anything intelligent on the subject, combined with the well-known tendency of this and every government to justify its actions by pointing to the villainy of its enemies.

    How many real bad guys are there in Gitmo, as opposed to unlucky POW’s or guys who got turned in for a reward or because somebody didn’t like their face? How many people are there in how many black sites, and is the US actually extracting information from them, or just keeping them on ice? Who knows?

    All that’s for sure is that the next president will inherit one hell of a mess.

  13. I don’t know what all the fuss is about. The solution is simple and legal. It is a something we did in post war Germany.
    If they are not in uniform, they are guriellas or spies. Thus it is perfectly legal to shoot them on the spot. And that is what we should do.
    What is the problem with this if you want to win?

  14. This is a must hear:

    “Habeas Schmabeas”:

    An updated version of our episode “Habeas Schmabeas,” which won a 2006 Peabody Award.

    http://www.thislife.org/Radio_Episode.aspx?sched=1185

    Terry:

    The problem is that some of those who were picked up in Afghanistan have nothing to do with the Taliban or Al-Qaida. It was an opportunity for locals to turn to the American army some of their personal enemies (sometimes for very petty reasons). And guess what? The army paid these locals money for it. My money, your money!

    Yes, I would say shoot the terrorists, buy we should find the real ones (e.g.: OBL!) and shoot them in a public place. Shooting innoents does not: (1) help us kill terrorists, and (2) will probably create terrorists out of the shot detainees’ relatives (sons, daughters, brothers and sisters).

  15. No problem. Send the terrorists to one of your Reason hour get togethers. If they listen to you Rhoemite kooks, they’ll go even crazier than they already are and will kill themselves out of derangement before they can even strap on an explosive vest.

    “There’s no need to fear; Underzog is here!” (And don’t forget the “Underdog” movie that just came out.

  16. Underzog-

    Ernst Rohm was actually killed by Hitler in the Night of the Long Knives. You could have chosen a better Nazi to compare us with, since he earned the enmity of one of the most evil men in the 20th Century. But then, you would have to be literate to know that. Which you aren’t.

  17. Cesar:

    Underzog aside, have you heard that This American Life show before? It is an interesting one.

  18. Courts, however, see only specific cases, often in a random order; they are inexpert at dealing with national security issues and diplomatic trade-offs; and they are internally divided all the way up to the Supreme Court.”

    Congress should create a special court with limitations clearly defined. The problem isn’t with judges apply rules clearly stated, the problem is getting Congress to clearly state anything. The FISA court seemed to give plenty of leeway, even after the fact leeway.

    I think what people want, and basic human rights demands, is some sort of process so that somebody can see what the hell is going on. It isn’t going to solve individual denial of liberties, but it will hopefully solve the wholesale denial of rights. That’s the best anyone can hope for.

  19. iih-

    Never heard of it. I’ve looked it up on Wikipedia, and it says its an NPR show in Chicago. Since I live in the Atlantic South, I’m not surprised I haven’t heard of it. What does it have to do with underzog?

  20. Cesar:

    Yes, indeed it is an NPR show (I think it is now on Showtime and NPR no longer broadcasts it.)

    It has nothing to do with underzog. I was just trying not to get get distracted by detractors.

    See my comment above right before underzog’s comment. It is a good show that covers some of the cases who used to be at Gitmo and which describes the situation there. This particular show won a Peabody. You can download it, though the one available online at the above link is an “expanded version” (and the one I actually heard).

  21. I hope no candidate will change the current policies regarding terrorist detainees.

    We must hold them so they don’t impose their Islamo-Fascist way of life on us. Who wants their wife to be forced to wear an ugly black burqua when she goes to McDonalds? I know I don’t!

  22. Dondero:

    Just curios, I wonder:

    (1) Do all Muslims force women to wear burquas? Or, only the Islamo-fascists?

    (2) Is there even a difference between “regular Muslims” and Islamo-fascists? I.e., are all Muslims fascists?

    (3) Does that include American Muslims 9who are citizens)?

  23. Dondero:

    I forgot to say thanks in advance for the information. Am looking forward to hearing from you.

  24. Once again, someone is posting under my name. Please disregard the above statement. It was not posted by me.

  25. Also, looking at chicks in burqas compels me to touch myself.

  26. “Restrictionists seek to set some legislated boundaries. They want to limit but not eliminate the president’s freedom to seize and hold people as enemy combatants-by giving detainees access to the courts through habeas corpus review; by closing Guantanamo; by narrowing the legal definition of an unlawful enemy combatant”

    I believe the Military Commissions Act did all that.

    Gene Berkman
    The Geneva Conventions specifically exempts unlawful enemy combatants from POW rights.

  27. For the person who keeps posting smart-ass remarks under my name, I am requesting that you simply change my name slightly so that there is no confusion.

    I don’t mind at all being lampooned. But kindly use some other version of my name, even denigrating if you must.

    Using the exact spelling of my name to post under is highly offensive. And I dare say even the people who hate me here at Reason Blog would agree.

  28. Anyone seen SIV (or TWC)? I want to hear how this is all the fault of the left/Democrats.

  29. DONDEROOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

  30. “””Congress should create a special court with limitations clearly defined. The problem isn’t with judges apply rules clearly stated, the problem is getting Congress to clearly state anything.”””

    Congress is really bad about that. Also you’re missing a key element. The Constitution forbids Congress from passing post de facto laws. I think we are about to see how “construtionist” Alito and Roberts really are. I think the post de facto issue is part of one of the detainee cases they are taking. You can’t capture people, then pass laws about their capturing after the fact, and expect it to withstand constitutional scrutiny. It will be interesting if and how SCOTUS deals with that issue.

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