Problems with Military Detention (Cont'd.)

Two quick thoughts in response to Jack's post from early this morning: First, it bears emphasis that the sort of policy creativity reflected in the dialog between Jack and Rick Pildes concerning options like fixed-length detention terms can only come from legislative engagement. When the court entertains such ideas based on current law, the ideas pretty consistently don't have legs. For example, one district court judge in a Guantanamo case suggested that detention should require a finding of future dangerousness. The D.C. Circuit has squelched this pretty fast--rightly, in my view, under current law. And it has no future as a litigation matter, I suspect. As a policy matter, however, it strikes me as a very viable option at least for prospective captures. In fact, in one paper, I suggested exactly such a requirement. The irony, as I have noted before, is that we tend to think of legislation as the "pro-government" option and litigation as the one in which detainees get a fair shot. But the flexibility to design a system fair to detainees--one in which, for example, detention terms are fixed and future dangerousness matters--is actually far greater in the legislature than in the courts. Second, Jack points out that legislation is unlikely "because so many of the President’s supporters strenuously oppose tinkering with the detention system in a new statute on the ground that to tinker with it is to further legitimate it and make it permanent." That's true, but there's another reason as well that legislation is unlikely. Republicans--with the notable exception of Lindsey Graham--have refused to engage seriously over the issue. They have developed a peculiar ideological commitment to Guantanamo and to a kind of pure military detention that the conflict has rendered outmoded. One side doesn't want to do anything that acknowledges or legitimizes detention, and the other side doesn't want to do anything that admits that the current conflict is different detention-wise from World War II. That squeezes the president into a very small box. You can't triangulate without at least two other points. CLARIFICATION: More than one reader has pointed out that the manner in which I worded the first point above is not true as stated. That is, the executive branch on its own could implement the sort of policy creativity in question, all of which involves greater restraint. The wording is, indeed, inapt. I was referring to modes of embedding such policy creativity in law, not in policy, and contrasting litigation with legislation as a means of getting that done. The sentence should have read "First, it bears emphasis that getting the sort of policy creativity reflected in the dialog between Jack and Rick Pildes concerning options like fixed-length detention terms into American detention law can only happen through legislative engagement."