Hard Cases

The NYT catches up to the news about the OPR report, via Brad DeLong, who doesn't mention his deleted post but muses, "I never in my worst nightmares imagined that I was going to grow up to be the kind of professor who writes letters to the chancellor demanding that my colleagues be fired."

In other news, Jane Mayer has an article up on indefinite detention, which Obama appointee Neal Katyal thinks is a solution to prisoners we suspect but can't convict.

... a compromise idea has also emerged, which the Obama Administration is weighing. 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. ... 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.”

Naturally, I have my doubts about suspending the ordinary rules of due process like this. I think that to hold someone, he has to be convicted of *something*.

But does it have to be "beyond a reasonable doubt"? Could we convict non-citizens on a clear-and-convincing basis? a mere preponderance?

We would need something like the three-judge district court in civil-rights cases, with appeal directly to the Supreme Court. All judges to have top security clearances, perhaps with special defense practitioners paid (but not directed) by the feds, with like clearances.

Whether you keep the evidence secret from the accused seems the hardest question ... it's a travesty if you do, a security risk if you don't.

UPDATE: Did some actual, gasp, research on the reasonable-doubt issue:

we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364 (1970).

Some of the citations suggest that the Court could find some wiggle room however:

The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' C. McCormick, Evidence s 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence, s 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does ‘reflect a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).

Winship, 397 U.S. at 361-62. I wonder what Scalia would say, given that he thinks the Constitution is frozen at 1789?