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OLC’s Marty Lederman: An Opponent Of Preventive Detention?

Yesterday President Obama announced his intent to establish a system of preventive detention to stop would-be terrorists from carrying out an act of war --

Jul 31, 2020
Yesterday President Obama announced his intent to establish a system of preventive detention to stop would-be terrorists from “carrying out an act of war” — even when they “cannot be prosecuted for past crimes, in some cases because evidence may be tainted.” One of the most senior officials in the Justice Department’s Office of Legal Counsel, though, has expressed reservations to such a system in the past.
Before Marty Lederman became deputy assistant attorney general for the OLC, he was a prolific blogger and Bush-administration critic (and before that, an OLC attorney during the late Clinton and early Bush years). Here, for instance, is an Opinio Juris colloquy with the Brookings Institution’s Benjamin Wittesabout various detention issues. Wittes arguedthat Congress should “treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts,” calling preventive detentions “a psychological Rubicon we simply need to cross.”
Lederman objected:
Sorry, but I’m staying on this (constitutional) side of that line. “Dangerousness,” as such — particularly dangerousness as evidenced primarily by one’s “deeply held beliefs” — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial. Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.
constitutionally valid ground” for “noncriminal detention.”
We don’t yet know how Obama will define the category for eligibility into his preventive detention system. Could American citizens fall into that category? We don’t know. Obama gave as examples of possible preventive-detention targets “people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.”
One of Daphne’s posts earlier this weekquoted an Obama Justice Department filing further specifying the category:
“persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001?; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
But a federal judge rejected thatas overbroad as well. Accordingly, it’s unclear how federal judges will find anygrounds for indefinite preventive detention to be constitutional. Lederman’s post, written long before he went into the administration, provides, at least, a legal foundation to ask whether it’s worth trying to test judges’ patience in the first place.
Dexter Cooke

Dexter Cooke

Dexter Cooke is an economist, marketing strategist, and orthopedic surgeon with over 20 years of experience crafting compelling narratives that resonate worldwide. He holds a Journalism degree from Columbia University, an Economics background from Yale University, and a medical degree with a postdoctoral fellowship in orthopedic medicine from the Medical University of South Carolina. Dexter’s insights into media, economics, and marketing shine through his prolific contributions to respected publications and advisory roles for influential organizations. As an orthopedic surgeon specializing in minimally invasive knee replacement surgery and laparoscopic procedures, Dexter prioritizes patient care above all. Outside his professional pursuits, Dexter enjoys collecting vintage watches, studying ancient civilizations, learning about astronomy, and participating in charity runs.
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