Via Corrente, Ari Shapiro files an interesting report on preventive detention and how it might be enacted as an Obama Administration policy:

Attorney General Eric Holder . . . last week . . . testified before a Senate committee that a preventive detention program "would be some kind of review with regard to the initial determination [that the detainee should be held], and then a periodic review with regard to whether or not that person should continue to be detained."

(Emphasis supplied.) The devil is in the details of such a proposal but, as I wrote earlier (in my lonely support for a potential regime for preventive detention):

Navanethem Pillay, a lawyer from South Africa who serves as the U.N.'s top Human Rights offical, criticized President Obama and the U.S. today over the continued detention of Guantanamo detainees:

In her most detailed statement on U.S. detention policy, the South African lawyer criticized President Obama's decision to hold some suspected terrorists in detention indefinitely without a trial. She also called for a probe into officials who participated in torture sessions or provided the legal justification for it.

"People who order or inflict torture cannot be exonerated, and the roles of certain lawyers, as well as doctors who have attended torture sessions, should also be scrutinized," Pillay, the U.N. high commissioner for human rights, said in a statement dedicated to victims of torture.

[More...]

President Obama met today with Italian Premier Silvio Berlusconi. One outcome: Italy will take three Guantanamo detainees.

Thank you, Italy

From Bermuda, the four recently transferred Chinese Uighur Muslims, Abdulla Abdulqadir, Salahidin Abdulahad, Khalil Manut, and Ablikim Turahun, discuss the seven-plus years they spent in the United States' prison at Guantanamo Bay, Cuba.

"We'd never heard of al Qaeda until we came to Guantánamo and heard about them from our interrogators. "From what we have heard about them, they are an extremely radical group, with totally different ideals from ours. We are a peace-loving people."

The men said for a year of their imprisonment they were held in solitary confinement for 22 hours a day in a cramped cell with no natural light, and were allowed outside for a couple of hours a day in a three-metre by five-metre "recreation area".

Like many other of the Gitmo detainees, they were sold to the U.S. for cash after crossing into Pakistan: [More..]

Props to Palau, for tentatively agreeing to take up to 13 of the Chinese Uighur muslims from Guantanamo.

It is one of the world's smallest countries, with about 20,000 people scattered over islands of lush tropical jungle. Most work in tourism, construction and farming.

China is not happy. [More...]

Good news out of Guantanamo Bay today: Four of the Chinese Uighurs being held there have been moved to Bermuda where they will live and be free.

Bermuda's prime minister, Ewart Brown, said the men would be allowed to live in the self-governing British territory, first as refugees. Brown said they would be allowed to pursue citizenship and would have the right to work, travel and "potentially settle elsewhere".

Brown said negotiations with Washington over taking in the Uighurs began last month and he had no security concerns because the men had been cleared by US courts.

What a great place to resettle. It's beautiful, clean and, civilized. Major props to the island's Government for accepting them. [More...]

Bumped by BTD.

Allowing Guantanamo detainees to plead guilty to capital offenses related to the 9/11 attacks (an opportunity they do not clearly have in the military commission system) would sidestep the dicey issue of proving their guilt without relying on confessions that were coerced by torture. BTD makes the point that detainees who want to plead guilty should not be put on trial against their will simply to expose the details of their interrogations. That's true, but if the guilty pleas are accepted in a revamped military commission system (a proposal an administration task force has reportedly submitted to Secretary of Defense Robert Gates), detainees who are not actually guilty might be convicted and executed.

The detainees who want to plead guilty are apparently motivated by the allure of martyrdom. The desire to be a martyr (particularly after a prolonged and isolated incarceration) might convince a detainee to plead guilty despite his actual innocence. An innocent detainee shouldn't be executed even if that's his wish. [more ...]

Muhammad Ahmad Abdallah Salih, a 31 year old Yemeni held at Guantanamo Bay since 2002, has committed suicide, according to the AP and Pentagon.

Salih was in the psychiatric ward, being force-fed due to being on a hunger strike. He was down to 86 pounds. No charges had been filed against him.

"Salih was being force-fed in a restraint chair; the other six surviving inmates are being force-fed from bed," Remes said, adding that he didn't think the Yemeni had any legal representation until two lawyers arrived in February. "They were due to see him for the first time in a couple of weeks," he said.

The military says he was found unresponsive in his cell. Suicide or did his body give out? Stay tuned. [Update below]

Retired Major Gen. Antonio Taguba (remember the Taguda report on Abu Ghraib?) told the British press he agrees with President Obama that the photos of Iraqi detainees should not be released:

A former U.S. general said graphic images of rape and torture are among the photos of Iraqi prisoner abuse that President Barack Obama's administration does not want released.

"I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them," Taguba was quoted by the Daily Telegraph. "The mere description of these pictures is horrendous enough, take my word for it."

The Telegraph article is here. Among the graphic images: [More...]

Glenn Greenwald points to Sen. Russ Feingold's letter (PDF) to President Obama regarding, in part, the issue of preventive detentions. Feingold's letter is one I hope we can all applaud. For example, Feingold writes:

It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

(Emphasis supplied.) I agree. It has been my view since the issue of "preventive detention" came into view (during the Bush Administration) that the issue of defining "enemy combatants" and establishing a proper process of review for such a designation by the Executive are the critical questions raised. To be clear, they are raised in Gitmo, in the United States AND in Bagram, Afghanistan. More . . .

In law school, to illustrate a legal point, a professor will often use a set of hypothetical facts. When discussing "preventive detention," I think a similar exercise will be useful. In his post yesterday, Glenn Greenwald wrote:

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant."

To me, the key question that the procedures to be developed must address is the designation of a person as a combatant and the availability of meaningful review of the designation. (The length of the detention is also important, and the government should be required to periodically, say every six months, justify continued detention on a case by case basis.) So let's think about what would be accepted as sufficient evidence of "combatant" status. More. . .

Looks like it's time for a little history lesson. Let's go back to 1895 and the Supreme Court decision in Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394 (later overruled on unrelated grounds.)

The Supreme Court, in Coffin, traced the history of the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Here's the history: [More...]