Malinowski on the (Lack of) Need for Authority to Detain Without Charge for Persons Captured Outside Combat Zones

Tom Malinowski has an interesting op-ed in the Post today on the topic of the proposed executive order addressing annual reconsideration of GTMO detention decisions.  He notes that there may be interest in using such an order not only to enhance the existing annual review process for the current detainee population but also to address future detention authority more generally:

Some, however, are urging Obama to take a more fateful step: to issue an order covering not just the hard cases he inherited in Guantanamo but also allowing detention without trial of any terrorism suspect who may be apprehended in the future, even if far from a battlefield.

Tom is sharply critical of this prospect insofar as non-battlefield captures are concerned, on the ground that the criminal prosecution option will suffice to address future threats arising off the battlefield (and that the prosecution option would have sufficed as to the GTMO detainees if only they'd not been abused during interrogation in the early years):

In fact, the "impossible to prosecute but too dangerous to release" problem is the legacy of a period in 2002 and 2003 when hundreds of alleged low-ranking militants were brought to Guantanamo with no legal process. From 2004 on, the Bush administration brought only 18 terrorism suspects who were detained beyond the Iraqi and Afghan war zones into long-term U.S. custody. These men were all accused of significant involvement in terrorism and would have been excellent candidates for prosecution had the Bush administration wanted to try them. During the Obama administration, there has also been no reported case of a terrorism suspect captured or targeted abroad whom the government deemed worthy of long-term detention but who could not be prosecuted in U.S. courts. A new system of indefinite detention without trial is therefore not needed. But if one were established, the government would always be tempted to use it.

To be clear, I do agree that the criminal prosecution option can be highly effective, and I'm very troubled by efforts to depict the prosecution option as feckless or ineffective as a detention mechanism.  That said, I think Tom is too quick to dismiss obstacles to prosecution unrelated to the conditions of detention/interrogation.  A military interrogation may be conducted according to entirely lawful means and produce inculpatory information about someone, for example, yet the fruits thereof almost certainly would be deemed involuntary and hence inadmissible in a federal criminal trial (or, if about another person, their admission would be barred by the Confrontation Clause).  A foreign intelligence service might provide us with information that is highly probative, yet forbid us from using it in a criminal proceeding.  A source of our own might provide highly-probative information, yet we might be unable to use it without burning the source.   That there has been no "reported case" of a person worth detaining but unprosecutable does not tell me much about the size of that category.  Such a person may simply have gone undetained, for better or perhaps for much worse.  Such a person may instead have been killed, rendered to third party custody, or directly taken into custody by a third country. Put simply, the category may be bigger than Tom suggests, perhaps much bigger.  I hope that's not the case, and I think Tom is right to draw attention to the magnitude of the problem.  But I don't think the case for necessity is wholly-addressed by arguing that we no longer abuse our prisoners.