The Case for Unlimited Detention

Writing in The New York Times, Eric Posner makes the case that unlimited detention of detainees at Guantánamo Bay is legal.

Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.

This principle appears in many places in the law. Mentally ill people who are dangerous to themselves and others may be institutionalized for as long as they remain dangerous. Such detention is not considered a punishment for crimes. Indeed, because the hearing that determines whether a person should be institutionalized is not a criminal trial, it does not entitle the person to criminal trial protections like a jury.

So there you have it. Just get a judge to determine that everyone detained at Gitmo is mentally ill, and we can keep them locked up forever. Oh wait. Gitmo is super top secret and judges aren't allowed.

What a pity.