I would suggest again that we can simplify this greatly and should avoid any kind of complexity.

We should think of these categories not in terms of just legal categories but also in terms of the tasks that are being required for intelligence, criminal law, and military persons who are coming into contact with a range of people.

I can not emphasize enough the need to avoid any newfangled legislative fix. My suspicion since 2001 was that the Administration was intent on creating false legal black holes so that it could torture information out of these people. The DTA and MCA mechanisms I believe are thinly veiled efforts to cover the consequences of that awful decision in that detainees who have been subject to awful treatment are still being held. The newfangled fixes are all about covering over that effort to get intelligence through fundamentally illegal means. They are perversions to CYA.

So, keeping it simple, it would seem that in places of armed conflict that we adapt back to POW, security detainee, and civilian. On those security detainees, we give them essentially the protections of POW's. For civilians we give them Common Article 3 level.

For the person in the bar yelling "I am Al-Qaeda", I would think the bartender can call the police, they can pick the person up, and transfer them to military detention as a POW. If a person in WWII was in a bar and yelled "I am lieutenant in the Wehrmacht" I would not be surprised they would be arrested and sent for military internment. ( I doubt we will see many of these cases.)

For people we think are bad guys we want to question who are in the United States, the police are free to seek information from anyone, it is just up to people to decide whether they want to provide information. So the emphasis should be on increasing good police work. In that regard, we have to balance the use of informants to possibly "create" crimes (see Miami Seven) and the need for assistance from the relevant communities stateside (do not scare people).

If there is evidence for a crime committed stateside, then persons should be arrested and held under the criminal law. We already have preventive detention in the form of bail or no bail for persons who are arrested and charged with a crime. Given the ability to get convictions like we have had here in Toledo for intent with minimal acts, it seems that the criminal law can get us very far as it stands.

For those for whom we do not have evidence of a crime or intent to attack with acts or inchoate crimes, you have to have good ole fashion police work. Preventive detention in this setting seems to be an awful infringement on liberty and very likely to be counterproductive. Overseas, this "good police work" would be done by our intelligence services in cooperation with allies to cover places where hot wars are not going on.

In all of this, we are not to torture or cruelly inhumanly or degradingly treat the persons - whatever their category, whether caught domestically or internationally, and whether in armed conflict or not. Just a floor on all that.

That's what I would do. I do not think it is too complicated and it keeps this simple for all concerned.

As to those we have abused already and are held in some form of military or intelligence detention, if we still think we can not charge them with a crime we hold them as POWs until the end of the armed conflict. We bring cases in court-martial or civilian courts for those we consider have committed crimes. We use those vehicles for persons who want to challenge their detention.

Keep it simple. That's how we can handle this.

Best,

Ben