A small but perhaps important point. In my original post summarizing the EO, I had this to say:
What if the person is not a security threat, but happens to have potential intelligence value? This is not a proper ground for continued detention under the PRB system (I believe this is different from ARBs, and hence a substantial difference between the two systems).
Upon reflection, I would say it’s not at all that clear. The language here is a bit tricky, and I might be wrong about this point. But since the substantive test is that continued detention must be "necessary to protect against a significant threat to the security of the United States," I suppose it remains possible to argue in a particular case that the test is satisfied where a person is not likely to be dangerous if released yet could be the source of important information if held in continued detention subject to interrogation.
By Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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