The Struggles of Obama’s Detention Policy Task Force

Cross-posted at Balkinization

President Obama’s detention policy task force has said it needs more time to complete its work. Small wonder: when you start with the premise that certain detainees are “too dangerous to release” and then try to come up with legal procedures that will support that pre-determined outcome, you run into some sticky legal, practical, and political problems. (I’ve written about the administration’s “sentence first, verdict afterwards” approach here.)

The good news is that the Obama administration appears to be genuinely wrestling with the problems that follow from reverse-engineering systems of justice to guarantee continued detention. The prior administration didn’t bother with legal window dressing, let alone worry about the constitutional shortcomings of such an approach. The bad news is that the Obama administration still thinks it can overcome those problems if it gives detainees a carefully circumscribed menu of rights that falls somewhere between no rights at all (the Bush approach) and the rights they would get in any existing American system of justice.

The preliminary report of the task force, which focuses on the use of military commissions, doesn’t reveal any of this internal struggle. This is a public document, intended for public consumption. It doesn’t contain any real analysis or recommendations; those presumably appear in other, non-public documents. Instead, it sets forth the decisions already made by the President (and already made public) and justifies them. It’s an advocacy piece, pure and simple.

Read the rest here.