Provision for Legal Detention of Unlawful Combatants

The US Constitution has made provision for dangerous situations where conventional and important legal protections might need to be modified. Article I of the US Constitution provides that:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Obviously, in cases of "rebellion or invasion," other measures can be taken and Congress should make a provision for dealing with these new illegal combatants in a thoughtful and formal way. Consider the following proposed steps:

1. Via legislation, Congress should provide the temporary authority for the executive branch to detain those who it has strong reason to believe are part of the foreign network at war with the United States. The legislation should make clear the level of proof required for this detention.

2. Congress should provide for a special court with the sole purpose of supervising this detention. Members of this court could be cleared to review classified information. Every six months (or whatever time period Congress specifies), the executive branch must re-make the case for continued detention to this special court.

3. Congress should place a time limit on this legislation so that this special executive power does not continue indefinitely and so that the specific provisions of the legislation can be reviewed and modified as necessary.

These legislative steps would not only protect the country, but also insure that anyone who is detained is done so under the review and care of all three branches of government. Importantly, these special provisions would be temporary in nature.

It is time for Congress to act in order to protect Americans and American liberties and avoid the unnecessary distraction of constant arguments about what may be more detentions.

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