Proposal Offers Specifics On Preventive Detention A proposal works through many of the difficult questions the Obama administration has skirted about a potential law. It provides restrictions on who can be held and requires regular review by the courts. The proposal's author acknowledges that it's controversial but says the system already allows indefinite detention.
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Proposal Offers Specifics On Preventive Detention

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Proposal Offers Specifics On Preventive Detention


Proposal Offers Specifics On Preventive Detention

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This morning, we have an exclusive first look at a legal proposal that's bound to get a lot of attention in the weeks ahead. It's a detailed plan for holding terrorism suspects without trial, and it comes from two experts outside of the government.

As NPR's Ari Shapiro reports, the proposal's already being discussed in the Obama administration.

ARI SHAPIRO: In May, President Obama drew a very rough sketch of a preventive detention system in a speech at the National Archives.

President BARACK OBAMA: 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.

SHAPIRO: The question is how to handle terrorism detainees the Obama administration believes cannot be tried or released? Attorney General Eric Holder was short on details when he testified before a Senate committee last week.

Attorney General ERIC HOLDER (Department of Justice): The thought we had was that it would be some kind of review with regard to the initial determination, and then a periodic review with regard to whether or not that person should be - continue to be detained.

SHAPIRO: Although the debate has been hazy until now, it is about to come into sharp focus.

As early as today, Benjamin Wittes of the Brookings Institution plans to release a detailed proposal for a law that would allow the government to hold terrorism detainees. Wittes acknowledges it will be controversial.

Mr. BENJAMIN WITTES (Brookings Institution): I think very few readers will read it and say, you know, this is exactly what we need. I think of it as more of an opening of a discussion than an effort to end the discussion.

SHAPIRO: Wittes occupies a relatively unique position in national security. 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," with soldiers collecting evidence. Some liberals say holding people without trial is un-American.

Mr. WITTES: Look, I think most concerns that most people express on the left and right are legitimate concerns. One problem that I have with the debate over this is people aren't careful enough to acknowledge that these issues are really hard and that most concerns expressed are legitimate to some degree.

SHAPIRO: So why push for indefinite detention at all? Well, Wittes says we already have it. People have been at Guantanamo for years. There are thousands more are in Afghanistan.

Mr. WITTES: And so there's no question that we're detaining people outside of the criminal justice system. The question is what the rules are for those detention and who makes those rules.

SHAPIRO: The draft legislation proposes two stages of detention. There are detailed rules for who it would apply to, such no American citizens and only a dangerous agent of a foreign power. The president could pick up anyone who fits those criteria and hold them for two weeks.

Mr. WITTES: If he wants to continue the detention past 14 days, he then has to petition a court.

SHAPIRO: A judge would look at evidence. Some could be highly classified, some hearsay - nothing obtained through torture though. And if a judge is convinced that a person is a threat, the president could hold the detainee for six months.

Mr. WITTES: And if he wants to continue it past that six months, he has to go through the process again.

SHAPIRO: And he can go through the process as many times as he wants.

Mr. WITTES: Correct.

SHAPIRO: So basically, somebody can be locked up for six months, followed by another six months, followed by another six months - more or less forever and ever.

Mr. WITTES: Yes. Now, that sounds like a pretty draconian thing, unless you compare it to the current policy.

SHAPIRO: Right now, Wittes says, people at Bagram Air Base in Afghanistan have been held for years without ever being seen by a judge. This program has early, regular buy-in from the courts.

Now this plan has lots of other details. For example, it would end after three years, unless Congress renews it.

But at this point, many human rights groups will say, we've heard enough. Elisa Massimino is CEO of Human Rights First:

Ms. ELISA MASSIMINO (CEO, Human Rights First): Once you open the door to that idea of holding people because of presumed dangerousness, or saying that 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.

SHAPIRO: 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.

Ari Shapiro, NPR News, Washington.

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