The New York Times buries this eye-opener on Page A-18:
President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a “preventive detention” system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.
The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed.
“He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can’t charge and detain,” one participant said. “We’ve known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning.”
The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held at Guantánamo Bay, but rather for those captured in the future, in settings other than a legitimate battlefield like Afghanistan…
The Obama administration has been internally mulling this issue on the downlow for months. In February, Jane Mayer reported in the New Yorker on what this system might look like:
A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.
One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department… Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”
Such schemes have already stirred considerable controversy elsewhere in the world, including in Great Britain, where since 2005 some three dozen terror suspects have been detained for a time under house-arrest-like conditions, in some cases being required to wear ankle monitors, obey curfews, and refrain from using phones or the Internet. In America, such a compromise is sure to alarm many human-rights advocates and civil libertarians, who regard indefinite detention as antithetical to the American legal system’s most basic tenets…
Later in the article, Mayer reported that White House counsel Greg Craig was looking at the whether the number of “hard cases” — suspects who may be difficult to convict under American legal standards of justice, but who may pose a palpable threat if released — might require preventive detention laws. While this thinking goes beyond the Guantanamo detainees, the difficulties Obama is having shutting down the facility — and perhaps his daily intelligence briefings — must be leaving him with more “hard cases” than he thought. Otherwise, he wouldn’t have floated this trial balloon with human rights groups, who were certain to receive it like the Hindenburg.