Unlike many other developed (and developing) nations, the United States does not have a statute authorizing preventive detention without charges. U.S. law has no formal statutory mechanism by which such a person could be detained. Some have suggested that this is a potentially profound defect in our national security armature. Indeed, had a rational preventive detention regime been in place, we might have avoided some of the many problems we have experienced at Guantanamo – problems that virtually everyone acknowledges require a new direction now. On the other hand, others see the absence of a preventive detention law in the U.S. Code as a testament to our collective commitment to individual liberty.
Preventive detention is in fact an established part of U.S. law for a wide range of nonterrorist situations. Federal and state statutes authorize preventive detention of those facing trial on criminal or immigration charges, and of those whose mental disabilities warrant civil commitment. The proper question, therefore, is not whether we should authorize preventive detention — it is already authorized — but how and under what circumstances it should be authorized. In particular, is there a case for preventive detention of persons suspected of terrorism beyond the preventive detention authorities that already exist, and are the existing authorities appropriate for detaining suspected terrorists? Are existing preventive detention authorities appropriately drawn to distinguish between those who truly need to be detained preventively, and those who do not? Should different rules apply in light of the potentially catastrophic harms posed by twenty-first century terrorists? Should different rules apply to Al Qaeda, a terrorist organization that has declared war on the United States, attacked us here and abroad, against whom Congress has authorized a military response, and with whom the United States is in an ongoing military conflict in Afghanistan? And if preventive detention is permissible under some circumstances, what are the appropriate substantive and procedural safeguards that should accompany it?
These are some of the most difficult and controversial legal questions of the day. In the wake of the Supreme Court’s decision extending habeas corpus review to Guantanamo detainees, it is a question that is certain to generate substantial litigation. As I will suggest in this article resolution of these questions must move beyond simple assertions that we must have – or must not have — a preventive detention regime. We already have such a regime – the proper question is whether it is a rational and sensible one, and if not, what can be done to reform it in a constructive fashion?