Posted by: birdsongslaw | May 27, 2009

Preventive Detention

Birdsong has heard a lot of talk during the last few days about “Preventive Detention.”  This has come in the wake of President Obama’s plans to close  the Guantanamo Bay prison facility where terror suspects have been held for the last  five years.  The administration has said that in closing the facility some prisoners will be sent to their home countries, others to maximum federal prisons  in the United States, and some will be held in “Preventive Detention.”  The Obama administration is supposedly working on rules for “Prevention Detention” of terror suspects.

Birdsong wonders how many of the pundits and opinion writers even know what “Preventive Detention” means.  Years ago when Birdsong was federal prosecutor in Washington, D.C. he had a few criminal cases where he sought  “Preventive Detention” of certain defendants.  Birdsong is not certain that we can fashion rules of such detention for terror suspects that will not violate due process.

“Preventive Detention” is usually categorized, in the criminal sense,  for non-capital  crimes as confinement imposed on a criminal defendant who has threatened to escape, poses a risk of harm, or has otherwise violated the law while awaiting  trial — such as trying to have the purported witnesses killed before trial.  Normally such preventive detention is granted by the judge who presides over the pending criminal case.  Normally, there must be a preventive detention hearing where the prosecution must demonstrate by clear and convincing evidence of the escape threat, risk of harm, or the violation of law while awaiting trial before such detention is granted.  This can be a high burden to achieve.  The defendant has the right for his counsel to cross examine the government’s witnesses and challenge the evidence presented at the preventive detention hearing.

Anecdotally, during Birdsong’s time as a prosecutor “Preventive Detention” was granted only about 50% of the time in non-capital criminal cases.  When it was granted it was used to hold the suspect without bail during the  time leading to the criminal trial and during the criminal trial.  And, there is the rub….such detention assumes there will be a trial!

If we have ‘Preventive Detention” for terror suspects and no trial does this means such suspect can be locked up indefinitely?  Birdsong hopes not.  Such detention without a trial or without subsequent follow up hearings to determine whether the suspects are still a danger would offend our notion of due process.  Sex offenders and mentally ill persons may be held “civilly” in preventive detention, however, they are allowed hearings every 6 to 9 months to determine whether they are still a danger.  Should we try such approach with terror suspects?

Birdsong wishes President Obama luck in fashioning rules of  “Preventive Detention” for terror suspect that will not offend due process.

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