Private: Debating Administration’s Actions on Military Detainees

Some criticism of the Obama administration's apparent decision not to push for new legislation on military detainees is weak, writes law professor Deborah Pearlstein in a recent post for Opinio Juris and Balkinization. Specifically, Pearlstein, a visiting faculty fellow at the University of Pennsylvania Law School, questions a recent Washington Post column criticizing the administration for not seeking congressional help "in establishing reasonable standards for the continued detention of Guantanamo detainees ...." In the column, the Brookings Institution's Benjamin Wittes calls the administration's decision "bad for the country, for national security and civil liberties," and says it represents adoption of Bush administration policy.

Pearlstein disagrees, writing, in part:

As far as I can tell, the Administration hasn't actually come to closure on a decision about this question with respect to its long-term countterrorism planning. In part because there is some disagreement on the question within the bureaucracy, in part because it is not necessary to resolve this longer term question in order to address the nearer term goal of closing Guantanamo (more on that next), my impression is the Administration has elected to continue discussing the matter, or at least leave off decision for another day. Whatever the reason, it is clearly good news. For reasons former federal prosecutors and many others have explained in deep detail (start here), the criminal justice system is an incredibly powerful tool for dealing with a broad swath of cases (far broader than preventive detention advocates generally credit), and flexible enough to accommodate the special procedural demands of terrorism trials.

Pearlstein's full article is here.

Pearlstein is scheduled to participate in an ACS symposium on national security and human rights issues next week. The Oct. 15 event at the National Press Club in Washington, D.C. will feature a lunchtime keynote address from the U.S. Assistant Attorney General for National Security David S. Kris. See here for more information on the symposium.

Criminal Justice, Executive Power, Prison Policy/Incarceration