Obama Leans Toward 'Preventive Detention'

MICHELE NORRIS, Host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, Host:

And I'm Melissa Block.

In the heated debate over closing Guantanamo, the phrase preventive detention has gained new currency. In his speech yesterday, President Obama said the government might have to hold terrorists who can't be put on trial or released.

P: In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.

BLOCK: So what might that system look like? NPR's Ari Shapiro has spent the day talking with people in and outside of the government who are working on this issue. And Ari, how far along is the administration on this?

ARI SHAPIRO: They're just beginning. They're in the fledgling stages. We are not talking about draft legislation yet. We're basically talking about a set of ideas. I've spoken with people on Capitol Hill today who say they've heard virtually nothing from the administration on this issue. But the administration might run into a problem - a challenge, anyway - which is that on the Republican side, there have always been a sort of stable of senators who had experience in military and legal issues. Former Senator John Warner, Senators John McCain and Lindsey Graham were sort of the go-to guys on the Republican side.

On the Democratic side, there isn't that same stable of expertise in this area.

BLOCK: The ideas that they're talking about, Ari, in terms of preventive detention, where are these ideas coming from?

SHAPIRO: Well, there's one paper that's getting a lot of attention by an attorney named Jack Goldsmith, who's now at Harvard Law School and who used to be in the Bush administration, in the Office of Legal Counsel. It outlines a lot of the thorniest issues and how to work through some of them. But what's really interesting about this paper is that Goldsmith started co-writing it with an attorney named Neal Katyal, who is a Democrat who represented one of the most famous Guantanamo detainees, Salim Hamdan, before the Supreme Court. Neal Katyal had to back out of writing this paper in order to go work for the Obama administration in the solicitor general's office.

But I'm told that Goldsmith and Katyal were able to reach agreement on 95 percent of the issues, including some of the most difficult questions about preventive detention. That shows some hope that maybe there can be agreement between the two parties on even an issue as controversial as this.

BLOCK: Ari, what are some of those most difficult issues that they're having to sort through?

SHAPIRO: Well, there's a threshold issue, that some groups will say any form of detention without trial is fundamentally anti-American. People who advocate this program say, listen, we lock up mentally ill people, who could be at risk of harming themselves or others, without a trial. They haven't yet committed a crime, so why not do that with terrorists?

And if we're going to do it with terrorists, you have to ask, well, how do you define those terrorists? Who do you apply it to? For example, could you hold American citizens? If we're going to hold American citizens, then could, for example, gang members in Baltimore who police hear are about to stage a big fight that night, be locked up without ever having done anything? That gives a lot of people chills.

So, one possibility is you define the people who you could lock up in the system by saying they have to be affiliated with some group that America is at war with. Then there's a question of how long you can hold people. The United Kingdom has a preventive detention program, but there are very strict, very short time limits on it.

So could you hold somebody indefinitely, forever, until the end of the war on terror? These are all questions that people are working through. I'm told that in the administration, White House Counsel Greg Craig is leading this effort along with a couple of people on the National Security Council. They've been meeting with human rights groups, and they've been trying to hash out all of these questions.

BLOCK: All right. The population we're talking about here, of Guantanamo detainees, these are people who have been deemed enemy combatants, right? I mean, don't different rules apply?

SHAPIRO: Well, yes. That's what the Obama administration will say. They will say that there are some of these people who have been tortured. They are dangerous, and we only know that they're dangerous because they've been tortured, so we can't put them on trial. They will say there are other people who, if we put them on trial, we would compromise sensitive sources and methods, giving up intelligence.

At the same time, they will say there has already been a de facto preventive detention program through the courts in Washington, D.C. They're hearing the cases of all these Guantanamo detainees. They say federal courts really weren't designed for this, and that's one reason the Obama administration wants Congress, judges, the human rights groups and everybody else to get together and come up with a new system here.

BLOCK: NPR's justice correspondent Ari Shapiro. Ari, thanks very much.

SHAPIRO: Good to talk to you.

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